MORAL  LAW 


AND 


CIVIL  LAW 


PARTS  OF  THE   SAME  THING 


BY  ELI   F.    RITTER 


NEW  YORK:    HUNT   &    EATON 

CINCINNATI  :    CRANSTON  &  CURTS 

1896 


Copyright  by 

HUNT  &  EATON, 

1896. 


Composition,  electrotyping, 
printing,  and  binding  by 

HUNT  &  EATON, 
150  Fifth  Ave.,  New  York. 


PREFACE. 


ABOUT  twenty  years  ago,  in  an  impor- 
tant trial  in  the  city  of  Indianapolis, 
it  was  sought  to  break  down  the  very 
strong  testimony  of  a  witness  by  showing 
that  the  general  moral  character  of  the 
witness  was  bad.  It  was  not  an  attack 
upon  the  general  reputation  of  the  witness 
for  truthfulness  and  veracity,  but  the  in- 
quiry was  directed  to  the  general  moral 
character  of  the  witness.  About  the  same 
time,  in  another  case  in  the  same  court, 
upon  the  application  of  a  man  to  be  admit- 
ted to  the  bar,  a  question  was  raised  upon 
his  moral  character.  A  few  weeks  later,  in 
another  case,  in  another  court,  in  the  same 
courthouse,  upon  an  application  of  a  man 
for  a  license  to  sell  intoxicating  liquors,  an 
issue  was  made  upon  his  moral  character. 
In  each  of  these  cases  witnesses  testified  on 

270455 


>'••*'•  PREFACE. 

each  side  of  the  question.  In  each  wit- 
nesses who  testified  to  the  good  moral 
character  of  an  individual  on  cross-exami- 
nation specified  truthfulness,  honesty,  and 
some  other  elements  of  morality  which 
were  characteristic  of  the  individual,  but 
admitted  defects  in  some  of  the  moral 
elements  of  good  character,  while  wit- 
nesses who  testified  to  the  bad  moral 
character  on  cross-examination  specified 
defects  in  the  moral  character  of  the  indi- 
vidual and  immorality  in  certain  regards  in 
support  of  a  general  statement  of  bad 
moral  character.  And  another  case  was  a 
suit  on  a  promissory  note  in  which  a  de- 
fense was  successfully  made  that  the  note 
was  given  for  an  immoral  and  hence 
illegal  consideration.  I  was,  at  the  time 
when  these  cases  were  tried,  a  young 
practitioner  at  the  bar.  I  was  very  deeply 
impressed  in  each  case  by  the  apparent 
uncertainty  in  the  minds  of  witnesses  as  to 
what  is  meant  in  the  law  by  moral  charac- 
ter and  morality ;  not  only  the  uncertainty 
in  the  minds  of  witnesses  in  these  regards, 


PREFACE.  5 

but  also  the  manifest  uncertainty  in  the 
minds  of  attorneys  and  judges  in  the  same 
regard.  On  account  of  these  exhibitions  of 
uncertainty  I  became  greatly  confused  in 
my  own  mind  upon  this  subject.  Lawyers 
and  judges  in  each  of  these  cases  undertook 
to  explain  to  witnesses  what  was  meant  by 
moral  character  and  morality,  and  in  doing 
so  made  it  very  clear  that  they  had  no 
more  definite  ideas  upon  the  subject  than 
the  witnesses  had.  From  my  experience 
in  the  practice  of  law  and  other  business 
and  social  relations  since  the  trial  of  the 
cases  to  which  I  have  referred,  having  seen 
the  same  questions  often  arise  in  the  trial 
of  cases  in  court,  I  have  become  satisfied 
that  the  general  public  has  no  definite  idea, 
neither  is  there  generally  a  clear  under- 
standing among  lawyers  and  judges,  as  to 
the  meaning  of  ''morality/'  "moral  char- 
acter, "and  "  immorality"  in  legal  contem- 
plation. Truthfulness,  or  business  honesty, 
or  generosity,  in  fact,  every  other  term 
that  is  used  in  speaking  of  the  characteris- 
tics of  individuals,  seems  to  be  quite  well 


6  PREFACE. 

understood.  Judges,  lawyers,  witnesses, 
and  the  public  generally  can  deal  with 
these  terms  with  confidence  in  their  under- 
standing, but  when  the  question  of  legal 
morality  is  raised  the  minds  of  all  at  once 
become  clouded.  The  question  as  to  what 
is  meant  by  the  terms  "  morality/'  or 
"moral  character,"  or  "immorality,"  is 
generally  settled  upon  an  assumed  moral 
standard  in  a  particular  locality  or  the  pecul- 
iar views  of  each  individual.  The  impres- 
sion seems  to  largely  prevail  that  this  ques- 
tion may  be  settled  by  adding  up  the  good 
qualities  in  one  column,  the  bad  in  another, 
and  striking  a  balance.  This  is  a  very 
dangerous  process.  I  have  known  men  of 
many  most  excellent  qualities,  but  in  one 
respect  almost,  or  quite,  totally  depraved. 
Their  good  qualities  were  used  to  give 
them  greater  influence  in  the  line  of  their 
depravity. 

There  seems  to  be  a  fair  degree  of  cer- 
tainty in  the  public  mind  generally  as  to 
the  meaning  of  Christianity  or  Christian 
morality.  The  great  uncertainty  in  the 


PREFACE.  7 

meaning  of  these  terms  arises  when  they 
are  used  in  legal  contemplation.  As  moral- 
ity and  moral  character  are  terms  in  very 
prominent  and  constant  use  in  judicial 
proceedings,  they  must  have  some  definite 
meaning,  and  there  must  be  some  way  of 
determining  definitely  what  they  do  mean. 
The  purpose  of  this  book  is  to  aid  in  set- 
tling these  questions.  I  claim  no  new  dis- 
covery in  the  meaning  of  terms,  and  what 
I  should  appreciate  as  the  highest  compli- 
ment that  could  be  paid  to  this  work  would 
be  to  have  it  proved  that  what  is  claimed  by 
the  author  for  the  legal  contemplation  of 
morality  has  been  a  settled  question  for  a 
great  many  years. 

If  I  can  succeed  in  calling  attention  to  and 
aid  in  the  correction  of  errors  in  the  com- 
prehension and  application  of,  this  term, 
and  aid  in  arousing  sentiment  in  support  of 
morality  in  the  fundamental  position  it 
occupies  in  civil  affairs,  I  shall  have  accom- 
plished my  purpose  and  feel  gratified.  I 
have  not  undertaken  to  give  exhaustive 
consideration  to  the  subjects  considered, 


8  PREFACE. 

but  to  present  and  support  them  in  the 
briefest  possible  way  that  I  could  do,  put- 
ting the  reader  upon  a  line  of  investigation 
which  can  be  pursued  to  great  extent  and 
profit.  ELI  F.  RITTER. 

Indianapolis,  February  4,  1896. 


CONTENTS. 


CHAPTER  I. 

Law  of  Public  Necessity 1 1 

CHAPTER  II. 

Morality  is  a  Fundamental  Principle  in  Civil  Gov- 
ernment      24 

CHAPTER  III. 
What  is  Morality  ? 47 

CHAPTER  IV. 
What  is  Immorality  ? 66 

CHAPTER  V. 
Legislation  and  Morality 77 

CHAPTER  VI. 
Common  Law  and  Morality 85 

CHAPTER  VII. 

Morality  in  Civil  Courts 89 

CHAPTER  VIII. 
The  Law  Grows 101 

CHAPTER  IX. 
Evil  Must  Be  Suppressed  and  Good  Promoted 138 

CHAPTER  X. 
No  Privileges  for  Evil . . 166 


MORAL  LAW  AND  CIVIL  LAW 
PARTS  OF  THE  SAME  THING. 


CHAPTER  I. 

LAW   OF   PUBLIC   NECESSITY. 

THERE  is  a  law  now  in  full  force  in  every 
State  in  this  Union,  in  the  govern- 
ment of  the  United  States,  and  in  every 
government  in  the  world,  that  was  hoary 
with  the  frosts  of  centuries  when  Moses 
bared  his  feet  in  the  presence  of  the  burn- 
ing bush,  and  that  has  ever  since  been  the 
fundamental  law  in  every  government  of  the 
world.  If  you  were  to  ask  me  for  the  book 
and  page  where  this  great  law,  with  its  full 
scope  and  specific  provisions,  might  be 
found,  I  should  not,  neither  would  any  other 
lawyer,  be  able  to  give  them  to  you.  I  refer 
to  the  law  of  public  necessity.  This  is  not 
only  an  important  law,  but  it  is  the  supreme 
law  of  every  government  and  every  land. 
This  law  was  defined  and  given  its  position 
in  the  Roman  government  before  the  begin- 


12        MORAL  LAW  AND  CIVIL  LAW 

ning  of  the  Christian  era  in  the  following 
maxim,  "  Salus  Populi  Suprema  Lex"  which 
is  translated  to-day  into  the  English  lan- 
guage by  the  expression,  "The  Public  Wel- 
fare is  the  Supreme  Law."  While  I  may 
not  be  able  to  give  you  the  scope  and  spe- 
cific provisions  of  this  law,  I  may  aid  the 
reader  in  gaining  fuller  comprehension  of 
the  same  by  a  few  illustrations. 

When  the  city  of  Chicago  was  on  fire  in 
1871  and  had  been  for  nearly  two  days,  and 
the  city  government  had  become  exhausted 
in  its  efforts  to  repress  the  flames  and  had 
acknowledged  its  defeat,  and  the  State  of 
Illinois  stood  paralyzed  in  the  presence  of 
the  fire  king,  General  Sheridan  was  placed 
in  command,  and  became  substantially  the 
only  governing  force  for  the  time  being  in 
that  locality.  General  Sheridan  was  the 
man  to  meet  the  demands  of  an  emergency. 
He  did  not  stop  to  ask  the  lawyer  of  Chi- 
cago what  he  could  do,  nor  the  business  men 
what  was  expected  of  him.  He  proceeded 
to  do  what  the  necessity  of  the  occasion  re- 
quired. He  placed  powder  in  the  basements 
of  a  row  of  buildings  two  squares  long,  and 
at  a  given  signal  blew  up  and  utterly  de- 
stroyed the  buildings,  with  their  contents. 


PARTS  OF  THE  SAME  THING.         13 

Those  buildings  and  their  contents  were 
private  property.  Individuals  held  the  title- 
The  owners  were  not  asked  to  consent,  and 
their  objections  were  unheeded.  Their 
property  was  destroyed,  and  there  was  no 
provision  of  law  by  which  any  compensation 
could  be  recovered.  This  action  was  author- 
ized and  justified  by  the  law  of  public  neces- 
sity. 

A  few  years  ago  a  railroad  train,  loaded 
with  passengers,  leaving  a  Southern  city, 
was  stopped  in  a  rural  locality,  run  on  to  a 
switch,  and  compelled  to  stand  still  for  two 
weeks  without  allowing  any  passenger  to 
leave.  This  interference  with  the  rights  of 
the  passengers,  and  their  imprisonment,  was 
justified  under  a  public  necessity  to  prevent 
the  spread  of  yellow  fever. 

A  few  years  ago  officers  of  the  law  went 
to  the  residence  of  a  prominent  citizen  of 
Philadelphia,  and  informed  him  that  they 
were  ordered  to  convey  his  wife  to  the  pest- 
house  because  she  was  afflicted  with  small- 
pox. He  did  not  consent,  claiming  that  he 
had  made  ample  provision  for  her  care  and 
the  prevention  of  any  public  hazard  on  ac- 
count of  her  disease.  Regardless  of  his  re- 
sistance, his  wife  was  taken  out  of  bed  by 
2 


14        MORAL  LAW  AND  CIVIL  LAW 

force,  and  carried  away  to  the  pest  hospital. 
The  husband  followed  the  ambulance  to  the 
door  of  the  hospital  and  asked  to  be  ad- 
mitted, that  he  might  be  with  his  wife  in 
her  sickness,  but  he  was  refused.  That 
man's  wife  died — he  never  knew  when — and 
was  buried — he  never  knew  where .  If  there 
is  any  right  among  men  more  sacred  than 
all  others,  it  is  the  right  to  be  with  and  care 
for  members  of  our  own  families  in  time  of 
sickness,  to  stand  by  them  in  the  hour  of 
death,  and  to  bury  them  in  a  place  selected 
by  us  for  that  purpose,  where  the  last  rest- 
ing place  may  be  marked  and  visited.  Yet 
that  most  sacred  of  all  rights  has  not  a 
feather's  weight  when  it  conies  in  conflict 
with  the  law  of  public  necessity. 

In  1863  the  government  of  the  United 
States  needed  men  for  military  duty.  A 
draft  was  ordered  in  Indiana  to  meet  the 
emergency,  and  to  add  to  the  thousands  of 
her  sons  who  were  already  in  the  field  as 
volunteers.  Among  those  who  were  drafted 
was  a  poor  man  in  southern  Indiana.  When 
notified,  he  said:  " Surely  the  government 
will  not  make  me  leave  my  feeble  wife  and 
three  little  children  and  go  into  the  army. 
I  have  no  way  of  providing  for  them  while 


PARTS  OF  THE  SAME  THING.         15 

I  am  gone,  and  I  have  no  money  to  hire  a 
substitute."  However  touching  such  an 
appeal  might  be,  it  could  not  be  regarded. 
He  was  compelled  to  leave  that  family 
mainly  to  the  care  of  neighbors,  was  forced 
into  the  army  and  on  to  the  field  of  battle. 
At  night,  after  the  first  day  of  that  bloody 
battle  of  Chickamauga,  among  the  dead 
bodies  brought  together  was  found  the 
mangled  and  lifeless  body  of  the  poor  con- 
script. As  his  comrades  looked  into  the 
glassy  eyes  and  pallid  face,  and  thought  of 
the  poor,  sick  wife  and  little  children  in 
their  helpless  condition,  they  said,  ' '  It  was  a 
hard  thing  that  the  government  required  of 
this  poor  man."  But  when  the  government 
has  battles  to  fight,  neither  inconvenience, 
personal  hazard,  nor  the  needs  of  a  family 
can  excuse  any  man  from  its  call  to  arms. 

A  citizen  of  Indianapolis  a  few  years  ago, 
who  possessed  all  the  privileges  and  rights 
that  any  other  citizen  in  the  city  possessed, 
was  suddenly  arrested,  tried,  convicted,  con- 
demned, and  on  a  day  fixed  for  that  purpose 
was  compelled  to  ascend  a  scaffold,  a  rope 
was  adjusted  about  his  neck,  his  hands  and 
feet  were  tied,  the  platform  on  which  he 
stood  was  sprung,  and  he  was  strangled  to 


1 6        MORAL  LAW  AND  CIVIL  LAW 

death.  While  the  lifeless  body  of  that  man 
hung  suspended  between  the  heavens  and 
the  earth,  an  opportunity  was  offered  to 
philosophize  on  the  rights  of  an  individual. 
An  execution  was  issued  upon  the  judgment 
rendered  in  his  case,  for  costs,  and  every 
dollar's  worth  of  property  he  had  in  the 
world  was  sold,  and  the  proceeds  applied  to 
pay  the  expenses  of  the  judicial  proceedings 
that  ended  with  the  taking  of  his  life.  He 
had  been  deprived  of  all  his  rights  of  prop- 
erty, liberty,  the  pursuit  of  happiness,  and 
life  itself.  All  this  because  he  had  violated 
a  law  of  public  necessity,  made  in  the  inter- 
est and  for  the  protection  of  society.  It  is 
true  this  proceeding  was  under  a  statute, 
yet  such  a  proceeding  would  have  been  law- 
ful if  there  had  been  no  statute,  being 
authorized  by  the  common  law  of  every 
government,  and  existed  in  the  day  when 
Haman  was  hanged  by  order  of  Ahasuerus. 

The  officers  of  the  law  may  enter  my 
house,  and  analyze  the  water  in  my  well, 
and  say  to  me  that  the  water  has  in  it  the 
germs  of  disease,  and  that  I  must  not  use  it 
— neither  myself  nor  my  family — nor  permit 
anyone  else  to  use  it.  I  may  answer :  ' '  This 
is  my  property ;  I  had  that  well  dug ;  we 


PARTS  OF  THE  SAME  THING.         17 

have  used  that  water  for  twelve  years.  I 
like  it,  and  this  is  a  free  country."  Never- 
theless, if  I  disregard  the  injunction,  I  may 
be  arrested,  fined,  and  imprisoned,  and  that 
well — that  poison  fountain — filled  to  the 
brim  to  prevent  the  spread  of  disease,  and 
I  may  be  compelled  to  pay  the  expenses  of 
all  these  proceedings.  They  may  examine 
the  milk  in  the  pantry,  and  destroy  it  .be- 
cause it  is  unhealthful.  All  this  is  under 
the  law  of  public  necessity,  to  prevent  the 
spread  of  disease.  There  will  be  no  conflict 
upon  the  proposition,  that  anyone  with  his 
whole  family  may  be  absolutely  restrained 
from  using  food,  milk,  or  drinking  water 
that  is  unhealthful.  When  the  question  is 
settled  that  a  food  or  a  fluid  is  unhealthful 
the  law  of  public  necessity  asserts  that  it 
shall  not  be  used.  It  would  not  be  difficult 
to  find  illustrations  of  this  principle  in 
every  State  and  in  every  government.  The 
law  of  public  necessity  is  only  limited  by 
the  necessity  itself.  Whatever  the  pub- 
lic necessity  requires  to  be  done  can  be 
legally  done  anywhere.  It  is  not  conceiv- 
able that  there  should  be  a  public  neces- 
sity and  no  law  to  meet  it,  and  the  public 
be  thereby  left  helpless.  It  can  be  readily 


1 8        MORAL  LAW  AND  CIVIL  LAW 

seen  that  no  individual  can  assert  a  personal 
right  against  the  law  of  public  necessity. 
There  is  no  such  thing,  and  never  was,  as  an 
absolute  individual  right  to  do  any  particular 
thing,  or  to  eat  or  drink  any  particular  thing, 
or  to  enjoy  the  associations  and  bliss  of  one's  own 
family,  or  to  live,  in  conflict  with  the  law  of 
public  necessity. 

The  law  of  public  necessity  demands  that 
everything  which  it  requires  to  be  done 
shall  be  done.  It  also,  with  the  same  au- 
thority, commands  that  everything  which  it 
requires  not  to  be  done  shall  not  be  done. 
I  present  another  phase  of  this  law  by  illus- 
trations. Sees.  4569  and  4570,  revised  stat- 
utes of  the  United  States,  applying  to  every 
vessel  that  flies  the  flag  and  claims  the  pro- 
tection of  this  government,  read  as  follows : 
Sec.  4569.  "Every  vessel  belonging  to  a 
citizen  of  the  United  States,  bound  from  a 
port  in  the  United  States  to  any  foreign 
port,  or  being  of  the  burden  of  seventy-five 
tons  or  upward,  and  bound  from  a  port  on 
the  Atlantic  to  a  port  on  the  Pacific,  or  vice 
versd,  shall  be  provided  with  a  chest  of  medi- 
cines ;  and  every  sailing  vessel  bound  on  a 
voyage  across  the  Atlantic  or  Pacific  Ocean, 
or  around  Cape  Horn,  or  the  Cape  of  Good 


PARTS  OF  THE  SAME  THING.         19 

Hope,  or  engaged  in  the  whale  or  other  fish- 
eries, or  in  sealing,  shall  be  provided  with, 
and  cause  to  be  kept,  a  sufficient  quantity  of 
lime  or  lemon  juice,  and  also  sugar  and 
vinegar,  and  other  antiscorbutics,  to  be 
served  out  to  every  seaman  as  follows :  The 
master  of  every  such  vessel  will  serve  the 
lime  or  lemon  juice,  and  sugar  and  vinegar, 
to  the  crew  within  ten  days  after  the  salt 
provisions  mainly  have  been  served  out  to 
the  crew,  and  as  long  afterward  as  such 
consumption  of  salt  provisions  continues; 
the  lime  or  lemon  juice  and  sugar  daily  at 
the  rate  of  half  an  ounce  each  per  day ;  and 
the  vinegar  weekly  at  the  rate  of  half  a  pint 
per  week  for  each  member  of  the  crew." 

Sec.  4570.  "  If  on  any  such  vessel,  such 
medicines,  medical  stores,  lime  or  lemon 
juice,  or  other  articles,  sugar  and  vine- 
gar, as  are  required  by  the  preceding  sec- 
tion, are  not  provided  and  kept  on  board 
as  required,  the  master  or  owner  shall  be 
liable  to  a  penalty  of  not  more  than  five 
hundred  dollars;  and  if  the  master  of  any 
such  vessel  neglects  to  serve  out  the  lime  or 
lemon  juice,  and  sugar  and  vinegar,  in  the 
case  and  manner  directed,  he  shall  for  each 
such  offense  be  liable  to  a  penalty  of  not 


20        MORAL  LAW  AND  CIVIL  LAW 

more  than  one  hundred  dollars ;  and  if  any 
master  is  convicted  for  either  of  the  offenses 
mentioned  in  this  section,  and  it  appears 
that  the  offense  is  owing  to  the  default  of 
the  owner,  such  master  may  recover  the 
amount  of  such  penalty,  and  the  costs  in- 
curred by  him,  from  the  owner." 

It  will  be  readily  seen  that  these  sections 
require  that  the  supplies  therein  named  shall 
be  provided,  and  issued,  and  used. 

This  law  has  been  enforced,  and  convic- 
tions and  penalties  adjudged  under  it,  in  a 
number  of  cases.  About  three  years  ago 
the  captain  of  a  vessel  was  brought  before 
the  United  States  Court  in  San  Francisco, 
charged  with  failing  to  issue  lime  juice,  of 
which  he  had  a  supply,  upon  a  voyage  just 
ended.  He  answered,  admitting  the  charge, 
but  saying  that  the  men  had  asked  for  an 
extra  ration  of  coffee  instead  of  lime  juice, 
and  as  he  saw  no  necessity  for  the  lime  juice, 
he  yielded  to  the  wishes  of  the  men.  The 
court  held  that  the  officer  was  not  made  the 
judge  of  the  necessity  for  issuing  the  lime 
juice ;  the  law  was  peremptory,  and  it  must 
be  obeyed ;  and  the  officer  was  fined.  How- 
ever, as  he  had  acted  from  good  intention, 
his  fine  was  merely  nominal. 


PARTS  OF  THE  SAME  THING.         21 

The  legal  question  has  been  settled  in 
this  country,  that  any  government,  having 
jurisdiction,  may  require  children  or  adults 
to  submit  to  vaccination  in  order  to  prevent 
the  spread  of  smallpox. 

If  the  government  of  the  United  States, 
for  the  protection  of  the  community  on  a 
great  steamer  that  numbers  its  crew  by  the 
hundreds  and  its  passengers  by  the  thou- 
sands, or  the  little  whaler  that  has  a  few 
persons  on  board,  may  require  that  lime 
juice,  onions,  or  other  specific  shall  be  pro- 
vided and  used  to  meet  the  needs  of,  and  to 
protect,  such  community  on  the  high  seas, 
and  a  government  may  require  vaccination 
for  like  purpose  on  the  land,  then  the  United 
States  government,  or  any  other  govern- 
ment, may  make  the  same,  or  any,  provisions 
and  requirements  for  such  communities  on 
the  land  as  public  necessity  may  require  in 
any  case.  Upon  these  illustrations  I  pre- 
sent the  proposition,  that  there  is  no  individual 
rigJit  to  refuse  to  eat,  or  to  drink,  or  to  do  any 
particular  tiling,  or  all  things,  that  the  public 
necessity  may  require. 

We  citizens  may  as  well  get  ourselves  in 
readiness  to  abstain  from  eating  food,  drink- 
ing water  or  milk,  or  any  other  fluid,  or  from 


22        MORAL  LAW  AND  CIVIL  LAW 

doing  any  and  every  thing  that  may  be  con- 
demned by  public  necessity ;  and  also  hold 
ourselves  in  readiness  to  drink  lime  juice, 
eat  onions,  or  any  other  specific,  or  do  any- 
thing that  may  be  required  of  us  by  the  law 
of  public  necessity. 

In  Town  of  Lake  View  vs.  Rose  Hill 
Cemetery  Co.,  the  Supreme  Court  of  Illinois 
defined  the  police  power  to  be :  ' '  The  law 
of  overruling  necessity."  70  111.,  R.  191. 
This  brief  definition  of  police  power  is 
fully  sustained  by  authority. 

Some  one  may  say  that  if  these  propo- 
sitions of  law  are  correct,  then  civil  govern- 
ment, at  best,  is  legalized  tyranny.  Let  us 
not  misapprehend  the  effect  of  these  propo- 
sitions ;  let  us  bear  in  mind  that  the  govern- 
ment must  seek  to  promote  the  public  wel- 
fare. In  so  doing,  hardships  may  sometimes 
come  to  the  innocent,  and  of  necessity 
transgressors  must  be  treated  as  outlaws,  and 
pursued  with  relentless  justice,  that  civil 
government,  public  health,  public  peace, 
morality,  and  good  order  may  be  protected ; 
that  the  weak  may  be  sheltered  from  the 
oppressor;  that  good  citizenship  may  be 
encouraged  and  bad  citizenship  suppressed. 

In  this  chapter  I  have  been  endeavoring 


PARTS  OF  THE  SAME  THING.         23 

to  present  the  rigid  rules  and  extreme  re- 
quirements of  the  law  of  public  necessity. 
I  have  done  this  to  meet  the  prating  on  per- 
sonal liberty  and  individual  rights  so  com- 
mon in  the  mouths  of  American  citizens 
with  foreign  ideas,  and  of  political  dema- 
gogues for  personal  ends.  It  is  remarkable 
and  amazing  that  these  classes  of  persons 
have  had  such  influence  as  to  secure  large 
acquiescence  in  their  claims,  and  such  hesi- 
tancy in  exposing  their  fallacies.  It  should  be 
borne  in  mind  that  rules  of  law  are  founded 
on  the  same  principle  as  the  yardstick,  the 
bushel  measure,  and  scales.  It  may  be  a 
great  restraint  sometimes  on  personal  liberty 
and  individual  rights  to  give  thirty-six 
inches  for  a  yard,  full  measure  for  a  bushel, 
twelve  or  sixteen  ounces  for  a  pound,  or  to 
regard  the  golden  rule  as  a  citizen,  but  the 
requirement  and  the  obligation  cannot  yield 
to  accommodate  the  ignorance,  whim,  or  vice 
of  the  individual.  The  observance  of  these 
things  is  the  pleasure  of  the  honest  man  and 
the  good  citizen.  The  intelligent  and  the 
patriotic  man  will  not  be  misled  by  false  state- 
ments as  to  facts,  nor  fallacious  arguments, 
nor  expect  good  results  from  the  application 
of  false  principles. 


24        MORAL  LAW  AND  CIVIL  LAW 


CHAPTER  II. 

MORALITY  IS  A  FUNDAMENTAL  PRINCIPLE  IN 
CIVIL   GOVERNMENT. 

1HAVE  attempted  to  show  in  the  former 
chapter  that  public  necessity  is  law.  If 
there  were  no  necessity  for  law  there 
would  be  no  law.  This  is  true  both  as  to 
moral  and  civil  law.  The  term,  civil  law, 
is  used  for  convenience,  intending  thereby 
in  this  work  to  comprehend  civil  and  crim- 
inal law  under  the  same  head.  There  is  no 
place  nor  condition  where  moral  law  does 
not  obtain,  and  there  is  no  place  nor  con- 
dition where  the  duty  is  to  civil  law  only. 
The  greatest  object  and  purpose  of  civil  gov- 
ernment under  our  civilization  is  to  pro- 
mote and  enforce  good  morals  in  the  trans- 
actions and  relations  of  its  citizens.  In 
carrying  out  the  necessities  of  government 
and  working  out  the  principles  of  public 
necessity,  morality  is  made  a  fundamental 
principle.  Upon  this  proposition  I  quote 
the  constitutional  provisions  that  have  been 
adopted  by  many  of  the  States  of  the  United 
States. 


PARTS  OF  THE  SAME  THING.         25 

In  the  Constitution  of  Indiana,  1851,  Art. 
8,  Sec.  i,  is  as  follows: 

"  Knowledge  and  learning  generally  dif- 
fused throughout  a  community  being  es- 
sential to  the  preservation  of  free  govern- 
ment, it  shall  be  the  duty  of  the  General 
Assembly  to  encourage,  by  all  suitable 
means,  moral,  intellectual,  scientific,  and 
agricultural  improvements,  and  to  provide 
by  law  for  a  general  and  uniform  system 
of  common  schools,  where  tuition  shall  be 
without  charge  and  equally  open  to  all." 

Arkansas.  Art.  2,  Sec.  25,  Constitution 
1874: 

"Religion,  morality,  and  knowledge  be- 
ing essential  to  good  government,  the  Gen- 
eral Assembly  shall  enact  suitable  laws  to 
protect  every  religious  denomination  in  the 
peaceable  enjoyment  of  its  own  mode  of 
public  worship." 

California.  Art.  9,  Sec.  i,  Constitution 
1879: 

'  'A  general  diffusion  of  knowledge  and  in- 
telligence being  essential  to  the  preservation 
of  the  rights  and  liberties  of  the  people,  the 
Legislature  shall  encourage  by  all  suitable 
means  the  promotion  of  intellectual,  scien- 
tific, moral,  and  agricultural  improvements." 


26        MORAL  LAW  AND  CIVIL  LAW 

Connecticut.  Art.  7,  Sec.  i,  Constitution 
1818: 

' '  It  being  the  duty  of  all  men  to  wor- 
ship the  Supreme  Being,  the  great  Creator 
and  Preserver  of  the  universe,  and  their 
right  to  render  that  worship  in  the  mode 
most  consistent  with  the  dictates  of  their 
consciences,  no  person  shall  by  law  be  com- 
pelled to  join  or  support,"  etc. 

North  Dakota.  Art.  8,  Sec.  147,  Consti- 
tution 1869: 

"  A  high  degree  of  intelligence,  patriot- 
ism, integrity,  and  morality  on  the  part  of 
every  voter  in  a  government  by  the  people 
being  necessary  in  order  to  secure  the  con- 
tinuance of  that  government  and  the  pros- 
perity and  happiness  of  the  people,  the 
Legislative  Assembly  shall  make  provision 
for  the  establishment  and  maintenance  of  a 
system  of  public  schools  which  shall  be 
opened  to  all  children  of  the  State  of  North 
Dakota,  and  free  from  sectarian  control." 

Sec.  149:  "In  all  schools  instruction 
shall  be  given  as  far  as  practicable  in  those 
branches  of  knowledge  that  tend  to  impress 
upon  the  mind  the  vital  importance  of  truth- 
fulness, temperance,  purity,  public  spirit, 
and  respect  for  honest  labor  of  every  kind." 


PARTS  OF  THE  SAME  THING.        27 

Delaware.  Art.  i,  Sec.  i,  Constitution 
1831: 

"  Although  it  is  the  duty  of  all  men  fre- 
quently to  assemble  together  for  the  public 
worship  of  the  Author  of  the  universe,  and 
piety  and  morality,  on  which  the  prosperity 
of  communities  depends,  are  thereby  pro- 
moted, yet  no  man  shall  or  ought  to  be  com- 
pelled to  attend  any  religious  worship,  to 
contribute  against  his  own  free  will  and 
consent." 

Florida.  Sec.  5,  Declaration  of  Rights, 
Constitution  1885  : 

"  The  free  exercise  and  enjoyment  of  re- 
ligious professions  and  worship  shall  for- 
ever be  allowed  in  this  State,  and  no  person 
shall  be  rendered  incompetent  as  a  witness 
on  account  of  his  religious  opinions ;  but  the 
liberty  of  conscience  hereby  secured  shall 
not  be  so  construed  as  to  justify  licentious- 
ness or  practices  subversive  of,  or  incon- 
sistent with,  the  peace  or  moral  safety  of  the 
State  or  society." 

Kansas.    Art.  6,  Sec.  2,  Constitution  1859 : 

' '  The  Legislature  shall  encourage  the  pro- 
motion of  intellectual,  moral,  scientific,  and 
agricultural  improvement,  by  establishing  a 
uniform  system  of  common  schools,  and 


28        MORAL  LAW  AND  CIVIL  LAW 

schools  of  a  higher  grade,  embracing  nor- 
mal, preparatory,  collegiate,  and  university 
departments." 

Maryland.  Art.  43,  Declaration  of  Rights 
1867: 

'  *  That  the  Legislature  ought  to  encourage 
the  diffusion  of  knowledge  and  virtue,  the 
extension  of  a  judicial  system  of  general 
education,  the  promotion  of  literature,  the 
arts,  sciences,  agriculture,  commerce,  and 
manufactures,  and  the  general  amelioration 
of  the  condition  of  the  people. 

Art.  30  provides  that  no  person  shall 
be  molested  on  account  of  his  religious  pro- 
fession, "  unless  under  the  color  of  religion 
he  shall  disturb  the  good  order,  peace,  or 
safety  of  the  State,  or  shall  infringe  the  laws 
of  morality." 

•Massachusetts.     Art.    n  of  the  Amend- 
ments, Declaration  of  Rights : 

"  As  the  public  worship  of  God  and  in- 
struction in  piety,  religion,  and  morality  pro- 
mote the  happiness  and  prosperity  of  a  peo- 
ple and  the  security  of  a  republican  govern- 
ment, therefore  the  several  religious  socie- 
ties of  the  commonwealth  shall  have  the 
right  to  elect  their  pastors,  contract  with 
them  for  their  support,  raise  money  to  erect 


PARTS  OF  THE  SAME  THING.         29 

and    repair    houses    for    public   worship," 
etc. 

Art.  1 8,  Declaration  of  Rights: 
1  *  A  frequent  recurrence  to  the  funda- 
mental principles  of  the  Constitution,  and  a 
constant  adherence  to  those  of  piety,  justice, 
moderation,  temperance,  industry,  and  fru- 
gality, are  absolutely  necessary  to  preserve 
the  advantages  of  liberty  and  to  maintain 
a  free  government.  The  people  ought, 
consequently,  to  have  a  particular  attention 
to  all  those  principles  in  the  choice  of  their 
officers  and  representatives,  and  they  have  a 
right  to  require  of  their  law  givers  and  mag- 
istrates an  exact  and  constant  observance 
of  them  in  the  formation  and  execution  of 
the  laws  necessary  for  the  administration  of 
the  commonwealth." 

Chap.  5  of  the  Constitution,  Sec.  2 : 
"  Wisdom  and  knowledge,  as  well  as  vir- 
tue, diffused  generally  among  the  body  of 
the  people,  being  necessary  for  the  preser- 
vation of  their  rights  and  liberties,  and  as 
these  depend  on  spreading  the  opportunities 
and  advantages  of  education  in  the  various 
parts  of  the  country  and  among  the  different 
orders  of  the  people,  it  shall  be  the  duty  of 
the  Legislatures  and  magistrates  to  cherish 
3 


3O        MORAL  LAW  AND  CIVIL  LAW 

the  interests  of  literature  and  the  sciences, 
...  to  countenance  and  inculcate  the 
principles  of  humanity  and  general  benevo- 
lence, public  and  private  charity,  industry 
and  frugality,  honesty  and  punctuality  in 
their  dealings ;  sincerity,  good  humor,  and 
all  social  affections  and  generous  sentiments 
among  the  people." 

Michigan.  Art.  13,  Sec.  1 1 ,  Constitution 
1850: 

' '  The  Legislature  shall  encourage  the  pro- 
motion of  intellectual,  scientific,  and  agri- 
cultural improvements.  .  .  ." 

Mississippi.  Art.  8,  Sec.  201,  Constitu- 
tion 1890: 

'  *  It  shall  be  the  duty  of  the  Legislature 
to  encourage  by  all  suitable  means  the  pro- 
motion of  intellectual,  scientific,  moral,  and 
agricultural  improvement,  by  establishing  a 
uniform  system  of  free  public  schools,  by 
taxation  or  otherwise,  for  all  children  be- 
tween the  ages  of  five  and  twenty-one  years, 
and  as  soon  as  practicable  to  establish 
schools  of  higher  grade." 

Missouri.  Art.  n,  Sec.  i,  Constitution 
1875: 

' '  A  general  diffusion  of  knowledge  and 
intelligence  being  essential  to  the  preserva- 


PARTS  OF  THE  SAME  THING.         31 

tion  and  the  rights  and  liberties  of  the  peo- 
ple, the  General  Assembly  shall  establish 
public  schools." 

Nebraska.  Art.  i,  Sec.  4,  Constitution 
1875: 

' '  All  persons  have  a  natural  and  inde- 
feasible right  to  worship  Almighty  God 
according  to  the  dictates  of  their  own  con- 
sciences. No  person  shall  be  compelled  to 
attend,  erect,"  etc.  "  Religion,  morality, and 
knowledge,  however,  being  essential  to  good 
government,  it  shall  be  the  duty  of  the  Leg- 
islature to  pass  suitable  laws  to  protect  every 
religious  denomination  in  the  peaceable  en- 
joyment of  its  own  mode  of  public  worship, 
and  to  encourage  schools  and  the  means  of 
instruction." 

New  Hampshire.     Art.  6,  Bill  of  Rights : 

"  As  morality  and  piety  rightly  grounded 
on  evangelical  principles  will  give  the  best 
and  greatest  security  to  government,  and 
will  lay  on  the  hearts  of  men  the  strongest 
obligations  to  due  subjection,  .  .  .  the  peo- 
ple of  the  State  have  a  right  to  empower, 
and  do  hereby  fully  empower,  the  Legislature 
to  authorize  from  time  to  time  the  several 
towns,  parishes,  bodies  corporate,  or  reli- 
gious societies  within  this  State,  to  make 


32         MORAL  LAW  AND  CIVIL  LAW 

adequate  provision  for  the  support  and  main- 
tenance of  public  Protestant  teachers  of 
piety,  religion,  and  morality." 

North  Carolina.     Art.  i,  Sec.  29: 

* '  A  frequent  recurrence  to  fundamental 
principles  is  absolutely  necessary  to  preserve 
the  blessings  of  liberty." 

Art.  9,  Sec.  i : 

' '  Religion,  morality,  and  knowledgebeing 
necessary  to  good  government  and  the  hap- 
piness of  mankind,  schools  and  means  of 
education  should  forever  be  encouraged." 

Ohio.     Art.  i,  Sec.  7,  Constitution  1851: 

".  .  .  Religion,  morality,  and  knowledge, 
however,  being  essential  to  good  govern- 
ment, it  shall  be  the  duty  of  the  General 
Assembly  to  pass  suitable  laws  to  protect 
every  religious  denomination  in  the  peace- 
able enjoyment  of  its  own  mode  of  public 
worship,  and  to  encourage  schools  and  the 
means  of  instruction." 

Rhode  Island.  Art.  12,  Sec.  i,  Constitu- 
tion 1 842  : 

"  The  diffusion  of  knowledge,  as  well  as 
of  virtue,  among  the  people  being  essential 
to  the  preservation  of  their  rights  and  liber- 
ties, it  shall  be  the  duty  of  the  General  As. 
sembly  to  promote  public  schools,  and  to 


PARTS  OF  THE  SAME  THING.         33 

adopt  all  means  which  they  may  deem  to  be 
necessary  and  proper  to  secure  to  the  people 
the  advantages  and  opportunities  of  educa- 
tion." 

Tennessee.  Art.  n,  Sec.  12,  Constitu- 
tion 1870: 

"  Knowledge,  learning,  and  virtue  being 
essential  to  the  preservation  of  republican 
institutions,  and  the  diffusion  of  the  oppor- 
tunities and  advantages  of  education  through- 
out the  different  portions  of  the  State  being 
highly  conducive  to  the  promotion  of  this 
end,  it  shall  be  the  duty  of  the  General  As- 
sembly, in  all  future  periods  of  this  govern- 
ment, to  cherish  literature  and  science. 

M 

Vermont.  Chap,  i,  Art.  3,  1793: 
' '  .  .  .  Nevertheless,  every  sect  or  denom- 
ination of  Christians  ought  to  observe  the 
Sabbath  or  Lord's  Day,  and  keep  up  some 
sort  of  religious  worship,  which  to  them 
shall  seem  the  most  agreeable  to  the  re- 
vealed will  of  God." 

Virginia.    Art.  i,  Sec.  17,  Bill  of  Rights: 
' '  That  no  free  government  nor  the  bless- 
ing of  liberty  can  be  preserved  to  any  peo- 
ple but  by  a   firm    adherence   to   justice, 
moderation,  temperance,  and  virtue,  and  by 


34        MORAL  LAW  AND  CIVIL  LAW 

a  frequent  recurrence  to  fundamental  prin- 
ciples." 

Sec.  18: 

'  *  That  religion,  or  the  duty  which  we 
owe  to  our  Creator,  and  the  manner  of  dis- 
charging it  can  be  directed  only  by  reason 
and  conviction,  not  by  force  or  violence; 
and,  therefore,  all  men  are  entitled  to  the 
free  exercise  of  religion,  according  to  the 
dictates  of  their  consciences,  and  that  it  is 
the  duty  of  all  to  practice  Christian  forbear- 
ance, love,  and  charity  toward  each  other." 

West  Virginia.  Art.  3,  Sec.  20,  Bill  of 
Rights  1872: 

"  Free  government  and  the  blessings  of 
liberty  can  be  preserved  to  any  people  only 
by  a  firm  adherence  to  justice,  moderation, 
temperance,  frugality,  and  virtue,  and  by  a 
frequent  recurrence  to  fundamental  princi- 
ples." 

Art.  12,  Sec.  12  : 

1 '  The  Legislature  shall  foster  and  encour- 
age moral,  intellectual,  scientific,  and  agri- 
cultural improvement,  .  .  ." 

In  the  States  where  neither  morality  nor 
education  are  specifically  referred  to  in  their 
constitutional  provisions,  these  matters  are 
nevertheless  recognized  by  legislative  acts 


PARTS  OF  THE  SAME  THING.         35 

and  by  decisions  of  their  courts  as  funda- 
mental. Kentucky  has  no  constitutional 
specification  as  to  morality,  but  morality  is, 
nevertheless,  in  her  fundamental  law.  I 
cite  a  case  in  Kentucky  to  this  effect. 

The  Commonwealth  vs.  Douglas,  re- 
cently decided  by  the  Court  of  Appeals,  and 
reported  in  24th  S.  W.  Reporter,  233,  from 
which  I  quote : 

"  When  we  consider  that  honesty,  moral- 
ity, religion,  and  education  are  the  main 
pillars  of  the  State,  and  for  the  protection 
and  promotion  of  which  government  was 
instituted  among  men,  it  at  once  strikes  the 
mind  that  the  government,  through  its  agen- 
cies, cannot  throw  off  these  trust  duties  by 
selling,  bartering,  or  giving  them  away. 
The  preservation  of  the  trust  is  essential  to 
the  happiness  and  welfare  of  the  benefici- 
aries, which  the  trustees  have  no  power  to 
sell  or  give  away.  If  it  be  conceded  that 
the  State  can  give,  sell,  and  barter  any  one 
of  them,  it  follows  that  it  can  thus  surrender 
its  control  of  all,  and  convert  the  State  into 
dens  of  bawdy  houses,  gambling  shops,  and 
other  places  of  vice  and  demoralization,  pro- 
vided the  grantees  paid  for  the  privileges, 
and  thus  deprive  the  State  of  its  power  to 


36        MORAL  LAW  AND  CIVIL  LAW 

repeal  the  grants  and  all  control  of  the  sub- 
jects, as  far  as  the  grantees  are  concerned; 
and  the  trust  duty  of  fostering  and  protect- 
ing the  honesty,  health,  order,  and  good 
morals  of  the  State  would  be  cast  to  the 
winds,  and  vice  and  crime  would  triumph  in 
their  stead.  Now,  it  seems  to  us  that  the 
essential  principles  of  self-preservation  for- 
bid that  the  commonwealth  should  possess 
a  power  so  revolting,  because  destructive  of 
the  main  pillars  of  government.  .  .  ." 

The  State  of  New  York  also  has  no  spe- 
cific provision  in  her  Constitution  upon  the 
subject  of  morality,  but  in  the  case  of  Stan- 
ton  vs.  Allen,  5  Denio  (New  York  Report), 
434,  the  Court  of  Appeals  in  that  State,  said : 
' ' .  .  .  Sound  morality  is  the  corner  stone 
of  the  social  edifice — whatever  disturbs  that 
is  condemned  under  the  fundamental  rule." 
These  citations  will  be  sufficient  upon  this 
matter,  as  I  think  there  will  be  no  contro- 
versy upon  this  subject. 

While  Justinian  the  Great  was  Emperor 
of  Rome,  about  A.  D.  530,  he  called  to  his 
aid  a  number  of  men  of  the  highest  legal 
learning  of  his  time,  and  undertook  to  com- 
pile and  define  the  principles  of  law  then 
recognized  by  his  government.  He  did 


PARTS  OF  THE  SAME  THING.         37 

more  than  all  other  men  in  the  history  of 
that  great  empire  for  the  establishment  of 
sound  legal  principles.  In  describing  the 
work  he  undertook  and  accomplished,  he 
says: 

"  When,  therefore,  by  the  assistance  of 
the  same  eminent  person,  Tribonian,  and 
that  of  other  illustrious  and  learned  men,  we 
had  compiled  the  fifty  books,  called  Digests 
or  Pandects,  in  which  is  collected  the  whole 
ancient  law,  we  directed  that  these  institu- 
tions should  be  divided  into  four  books, 
which  might  serve  as  the  first  elements  of 
the  whole  science  of  law. 

' '  In  these  books  a  brief  exposition  is  given 
of  the  ancient  laws,  and  of  those  also  which, 
overshadowed  by  disuse,  have  been  again 
brought  to  light  by  our  imperial  authority. 

"  Those  four  books  of  institute  thus  com- 
piled from  all  the  institutes  left  us  by  the 
ancients,  and  chiefly  from  the  commentaries 
of  our  Gaius,  both  from  his  institute  and 
his  journal,  and  also  from  many  other  com- 
mentaries, were  presented  to  us  by  the  three 
learned  men  we  have  above  named.  We 
read  and  examined  them,  and  have  accorded 
to  them  all  the  force  of  our  constitutions. 

"  Receive,  therefore,  with  eagerness,  and 


38        MORAL  LAW  AND  CIVIL  LAW 

study  with  cheerful  diligence,  these,  our 
laws,  and  show  yourself  persons  of  such 
learning  that  you  may  conceive  the  flattering 
hope  of  yourselves  being  able,  when  your 
course  of  legal  study  is  completed,  to  govern 
our  empire  in  the  different  portions  that 
may  be  intrusted  to  your  care." 

Justinian's  first  definition  is  as  follows: 
'  *  Jurisprudence  is  the  knowledge  of  things 
divine  and  human ;  the  science  of  the  just 
and  the  unjust." 

In  Paragraph  3,  of  Book  I,  he  says :  ' l  The 
maxims  of  the  law  are  these:  to  live  honestly; 
to  hurt  no  one;  to  give  everyone  his  due." 

His  whole  system  of  laws  was  founded 
upon  these  principles. 

Blackstone,  about  one  hundred  and  twen- 
ty-five years  ago,  undertook  the  great  work, 
in  imitation  of  Justinian,  of  compiling  legal 
principles  as  recognized  in  the  jurisprudence 
of  England.  In  laying  down  the  founda- 
tions of  his  work,  using  the  terms  ' '  Law  of 
Nature  "  and  "  Ethics  "  in  the  sense  of  moral 
law,  he  speaks  as  follows : 

' '  This  will  of  his  Maker  is  called  the 
law  of  nature.  For  as  God,  when  he  cre- 
ated matter  and  endued  it  with  a  principle 
of  mobility,  established  certain  rules  for  the 


PARTS  OF  THE  SAME  THING.         39 

perpetual  direction  of  that  motion;  so, 
when  he  created  man  and  endued  him  with 
free  will  to  conduct  himself  in  all  parts  of 
life,  he  laid  down  certain  immutable  laws 
of  human  nature  whereby  that  free  will  is 
in  some  degrees  regulated  and  restrained, 
and  gave  him  also  the  faculty  of  reason  to 
discover  the  purport  of  those  laws. 

' '  Considering  the  Creator  only  as  a  being 
of  infinite  power,  he  was  able,  unquestion- 
ably, to  have  prescribed  whatever  laws  he 
pleased  to  his  creature,  man,  however  un- 
just or  severe.  But,  as  he  is  also  a  being  of 
infinite  wisdom,  he  has  laid  down  only  such 
laws  as  were  founded  in  those  relations  of 
justice  that  existed  in  the  natures  of  things 
antecedent  to  any  positive  precept.  These 
are  the  eternal,  immutable  laws  of  good  and 
evil,  to  which  the  Creator  himself  in  all  his 
dispensations  conforms ;  and  which  he  has 
enabled  human  reason  to  discover,  so  far  as 
they  are  necessary  for  the  conduct  of  human 
actions.  Such,  among  others,  are  these 
principles:  that  we  should  live  honestly, 
should  hurt  nobody,  and  should  render  to 
everyone  his  due ;  to  which  three  general 
precepts  Justinian  has  reduced  the  whole 
doctrine  of  law. 


40        MORAL  LAW  AND  CIVIL  LAW 

"  But  if  the  discovery  of  these  first  prin- 
ciples of  the  law  of  nature  depended  only 
upon  the  due  exertion  of  right  reason,  and 
could  not  otherwise  be  obtained  than  by  a 
chain  of  metaphysical  disquisitions,  man- 
kind would  have  wanted  some  inducement 
to  have  quickened  their  inquiries,  and  the 
greater  part  of  the  world  would  have  rested 
content  in  mental  indolence  and  ignorance, 
its  inseparable  companion.  As,  therefore, 
the  Creator  is  a  being,  not  only  of  infinite 
power  and  wisdom,  but  also  of  infinite  good- 
ness, he  has  been  pleased  so  to  contrive  the 
constitution  and  frame  of  humanity  that  we 
should  want  no  other  prompter  to  inquire 
after  and  pursue  the  rule  of  right,  but  only 
our  self-love,  that  universal  principle  of  ac- 
tion ;  for  he  has  so  intimately  connected, 
so  inseparably  interwoven,  the  laws  of  eter- 
nal justice  with  the  happiness  of  each  indi- 
vidual that  the  latter  cannot  be  obtained 
but  by  observing  the  former;  and  if  the 
former  be  punctually  obeyed  it  cannot  but 
induce  the  latter.  In  consequence  of  which 
mutual  connection  of  justice  and  human 
felicity  he  has  not  perplexed  the  law  of  na- 
ture with  a  multitude  of  abstract  rules  and 
precepts,  referring  merely  to  the  fitness  or 


PARTS  OF  THE  SAME  THING.        41 

unfitness  of  things,  as  some  have  vainly  sur- 
mised ;  but  has  graciously  reduced  the  rule 
of  obedience  to  this  one  paternal  precept, 
'  that  man  should  pursue  his  own  true  and 
substantial  happiness/  This  is  the  founda- 
tion of  what  we  call  ethics  (morality),  or 
natural  law.  For  the  several  articles  into 
which  it  is  branched  in  our  system  amount 
to  no  more  than  demonstrating  that  this  or 
that  action  tends  to  man's  real  happiness, 
and,  therefore,  very  justly  concluding  that 
the  performance  of  it  is  a  part  of  the  law 
of  nature ;  or,  on  the  other  hand,  that  this 
or  that  action  is  destructive  of  man's  real 
happiness,  and,  therefore,  that  the  law  of 
nature  forbids  it." 

"  This  law  of  nature,  being  coeval  with 
mankind  and  dictated  by  God  himself,  is,  of 
course,  superior  in  obligation  to  any  other. 
It  is  binding  over  all  the  globe,  in  all  coun- 
tries, and  at  all  times.  No  human  laws  are 
of  any  validity  if  contrary  to  this ;  and  such 
of  them  as  are  valid  derive  all  their  force 
and  all  their  authority,  mediately  or  imme- 
diately, from  this  original." 

Chancellor  Kent,  the  distinguished  Amer- 
ican commentator  and  law  writer,  begins  his 
commentaries  with  the  following  statement : 


42         MORAL  LAW  AND  CIVIL  LAW 

' '  When  the  United  States  ceased  to  be  a 
part  of  the  British  empire,  and  assumed 
the  character  of  an  independent  nation,  they 
became  subject  to  that  system  of  rules 
which  reason,  morality,  and  custom  has  es- 
tablished among  the  civilized  nations  of 
Europe.  .  .  . 

"  We  ought  not,  therefore,  to  separate 
the  science  of  public  law  from  that  of  ethics 
or  morality,  nor  encourage  the  dangerous 
suggestion  that  governments  are  not  so 
strictly  bound  by  the  obligations  of  truth, 
justice,  and  humanity  in  relation  to  other 
powers  as  they  are  in  the  management  of 
their  own  local  concerns.  States,  or  bodies 
politic,  are  to  be  considered  as  moral  per- 
sons having  a  public  will,  capable  and  free 
to  do  right  and  wrong,  inasmuch  as  they 
are  collections  of  individuals,  each  of  whom 
carried  with  him  into  the  service  of  the 
community  the  same  binding  law  of  mo- 
rality and  religion  which  ought  to  control 
his  conduct  in  private  life.  The  law  of  na- 
tions is  a  complex  system  composed  of  va- 
rious ingredients.  It  consists  of  general 
principles  of  right  and  justice,  equally  suit- 
able to  the  government  of  individuals  in  a 
state  of  natural  equality  and  to  the  relation 


PARTS  OF  THE  SAME  THING.        43 

and  conduct  of  nations ;  of  a  collection  of 
usages,  customs,  and  opinions  the  growth 
of  civilization  and  commerce ;  and  of  a  code 
of  conventional  or  positive  law.  In  the  ab- 
sence of  these  latter  regulations  the  inter- 
course and  conduct  of  nations  are  to  be  gov- 
erned by  principles  fairly  to  be  deduced 
from  the  rights  and  duties  of  nations  and 
the  nature  of  moral  obligations;  and  we 
have  the  authority  of  lawyers  of  antiquity, 
and  of  some  of  the  first  masters  in  the 
modern  schools  of  public  law,  for  placing 
the  moral  obligation  of  nations  and  of  indi- 
viduals on  similar  grounds,  and  for  consid- 
ering individual  and  national  morality  as 
parts  of  one  and  the  same  science." 

Sheldon  Amos,  M.A.,  Professor  of  Juris- 
prudence in  the  University  College,  Lon- 
don, Tutor  to  the  Inner  Temple  of  Juris- 
prudence, Civil  Law,  and  International 
Law,  in  a  work  published  in  1872,  entitled 
Systematic  View  of  the  Science  of  Jurispru- 
dence, Vol.  I,  page  515,  says: 

' '  The  purpose  of  the  law  is  to  fortify  and 
to  maintain  public  morality,  and  not  to 
create  and  invent  it ;  give  solidity  and  per- 
manence to  the  essential  relationship  on 
which  national  life  depends,  and  not  to  be 


44         MORAL  LAW  AND  CIVIL  LAW 

the  formation  of  their  vital  energy ;  to  se- 
cure for  every  man  and  woman  for  the  cre- 
ation of  rights  and  duties  a  clear  and  open 
space  for  unrestricted  action,  within  which 
they  are  free  to  develop  all  their  faculties 
without  hindrance  or  intrusion  from  with- 
out ;  and  to  uphold  the  security  of  such  in- 
stitutions as  the  voluntary  efforts  of  man- 
kind may  devise  or  adopt,  as  seems  to  them 
best  calculated  to  quicken  or  develop  or 
invigorate  the  moral  aspirations  of  the 
race." 

Dr.  Francis  Lieber  was  educated  and  re- 
ceived high  cultivation  in  the  schools  of 
France.  Among  other  works  was  his  Man- 
ual of  Political  Ethics  (morality),  which  he 
wrote  and  published  in  1878.  Chancellor 
Kent  says,  in  approval  of  this  work:  "  Dr. 
Francis  Lieber,  in  his  Manual  of  Political 
Ethics,  has  shown  with  great  force,  and  by 
the  most  striking  and  apposite  illustrations, 
the  original  connections  between  right  and 
morality,  and  the  reason  and  the  necessity 
for  the  application  of  the  principles  of  eth- 
ics (morality)  to  the  sciences  of  politics  and 
administration  of  government.  The  work 
is  excellent  in  its  doctrines,  and  it  is  en- 
riched with  various  and  profound  erudition." 


PARTS  OF  THE  SAME  THING.        45 

Bishop,  for  thirty  years  recognized  in  the 
United  States  as  a  standard  authority  on 
criminal  law,  in  his  work  on  that  subject 
says,  Sec.  495  :  "  Morality,  religion,  and 
education  are  the  three  main  pillars  of  the 
State  and  the  substance  of  all  private  good. 
A  community  from  which  they  are  banished 
represents  more  than  the  gloom  of  original 
chaos.  Therefore,  they  should  be  objects 
of  primary  regard  by  the  law." 

Also,  Sec.  500:  "But  however  uncer- 
tain may  be  the  precise  extent  to  which  the 
common  law  protects  Christianity,  there  is 
no  question  that  it  practically  and  fully 
cherishes  the  public  morals.  And  it  pun- 
ishes as  a  crime  every  act  which  it  deems 
sufficiently  evil  and  direct,  tending  to  impair 
the  public  morals." 

The  same  author,  in  his  works  on  con- 
tracts, enlarged  edition,  Sec.  505,  says: 
"  Prominent  among  the  interests  which  the 
law  protects  are  the  public  morals." 

The  legal  authorities  here  cited  upon  this 
proposition  are  taken  from  the  various  pe- 
riods of  history  reaching  back  to  the  begin- 
ning of  the  Christian  era,  and  also  univer- 
sally recognized  as  the  leading  authorities 
upon  law  and  jurisprudence.  I  might  add 
4 


46        MORAL  LAW  AND  CIVIL  LAW 

a  large  number  and  quote  volumes  to  the 
same  effect,  but  for  the  purposes  of  this 
work  must  content  myself  with  the  support 
thus  given  to  the  proposition  that  morality 
is  a  fundamental  principle  of  civil  govern- 
ment. I  hazard  nothing  by  saying  that  no 
legal  authority  of  respectable  standing  can 
be  found  to  the  contrary. 


PARTS  OF  THE  SAME  THING.        47 


CHAPTER  III. 

WHAT   IS    MORALITY? 

I  KNOW  nothing  about  which  there  ex- 
ists in  the  public  mind  or  the  legal 
profession  more  uncertainty  than  there 
is  concerning  the  word  "morality,"  in 
civil  law.  There  are  very  few  attorneys, 
whatever  may  be  the  length  of  their  ex- 
perience or  their  standing  in  the  profession, 
who  would  answer  without  hesitation  or 
with  confidence  the  question,  What  does  the 
law  mean  by  the  word  morality?  It  is 
most  remarkable  that  a  word  so  familiar,  as 
old  as  the  language,  which  is  a  translation 
of  Latin  and  Greek  terms,  extending 
beyond  the  Christian  era,  a  word  which  is 
used  for  the  foundation  stone  of  civil  gov- 
ernment, should  convey  so  vague  and  un- 
certain an  idea  to  the  public  mind.  This 
familiar  word  evidently  has  some  meaning, 
represents  some  great  and  indispensable 
principle,  is  of  the  greatest  importance,  or 
else  it  would  not  have  been  so  long  in  use 
and  been  given  such  remarkable  prominence 


48        MORAL  LAW  AND  CIVIL  LAW 

in  civil  affairs.  There  is  a  very  large  and 
influential  school  of  political  teachers  who 
insist  that  morality,  whatever  it  means, 
should  not  be  connected  in  any  way  with 
politics  or  legislation,  asserting  that  men 
cannot  be  made  moral  by  legislation.  On 
the  other  hand  there  is  a  very  large  and  in- 
fluential school  that  teaches  that  morality 
and  religion  are  the  same  thing,  who  be- 
lieve in  the  union  of  Church  and  State,  and 
that  politics  and  legislation  should  provide 
for  and  control  matters  of  religion.  It  will 
not  be  controverted  that  civil  governments 
must  contemplate,  as  do  these  United  States, 
the  protection  of  liberty  in  religious  belief, 
and  encourage  religious  worship  as  they  do 
education  and  other  subjects  for  the  pur- 
pose of  good  influences  that  come  from  these 
things.  These  civil  governments,  however, 
cannot  define  and  favor,  or  control,  or  re- 
strict, any  special  form  of  religious  worship 
or  belief.  I  am  convinced  that  there  is  a 
general  and  prevailing  uncertainty  among 
the  masses  of  people  as  to  the  distinction 
between  matters  of  religion  and  morality. 
Out  of  this  uncertainty  comes  a  very  dan- 
gerous sentiment  creating  the  impression 
that  as  civil  government  cannot  enforce  mat- 


PARTS  OF  THE  SAME  THING.         49 

ters  of  religion  and  forms  of  religious  wor- 
ship, it  cannot  enforce  matters  of  morality 
and  moral  conduct. 

Let  me  attempt  to  simplify  from  a  legal 
standpoint  the  difference  between  religion 
and  morality.  Religion  refers  to  the  inner 
individual  life  and  belief.  Religion  requires 
that  a  man  should  love  his  neighbor  as  him- 
self, but  the  civil  law  cannot  compel  him  to 
do  so,  nor  punish  him  if  he  does  not. 
Morality  requires  a  man  to  treat  his  neigh- 
bor honestly  and  fairly,  and  can  compel  him 
to  do  so,  and  punish  him  if  he  does  not. 
Religion  is  a  matter  of  belief ;  morality  is  a 
matter  of  conduct.  The  law  does  not  in- 
terfere with  matters  of  belief,  but  does  un- 
dertake to  control  matters  of  conduct.  The 
legal  distinction  between  religion  and  moral- 
ity is  thus  clearly  presented  without  further 
discussion,  so  that  no  man  need  go  astray. 
The  words  virtue,  utility,  ethics,  and  espe- 
cially the  latter,  have  been  largely  considered 
and  made  subjects  of  many  books,  and  have 
occupied  the  time  and  attention  of  great 
minds.  In  recent  years  the  word  ''altru- 
ism" has  been  suggestive  as  a  theme  for 
great  attention  and  the  expression  of  beau- 
tiful ideas.  The  science  of  sociology  is  just 


50        MORAL  LAW  AND  CIVIL  LAW 

now  attracting  wide  attention  and  considera- 
tion. There  seems  to  be  a  general  timidity 
and  hesitation  in  the  use  of  the  word  moral- 
ity and  the  consideration  of  its  scope  and 
application.  Upon  careful  consideration  of 
all  that  has  been  written  and  said,  and  is 
being  written  and  said,  about  this  word  and 
many  words  of  like  import,  it  will  be  seen 
that  what  is,  in  the  main,  contemplated  and 
discussed  under  each  and  all  of  these  names 
is  the  simple,  common,  old-fashioned  sub- 
ject of  morality,  nothing  more,  but  often 
something  less.  Why  hunt  for  terms  or 
words,  why  confuse  counsel,  why  attempt 
to  weaken  the  force  of  the  good  old  word 
morality,  by  using  vague,  uncertain,  feebler 
terms,  that  have  never  had,  and  never  can 
have,  a  fixed  and  settled  meaning?  I  come 
to  plead  for  a  fixed  science,  and  no  vagary. 

Paley,  in  his  work  on  Moral  and  Politi- 
cal Philosophy,  written  more  than  one  hun- 
dred and  ten  years  ago,  begins  with  the  first 
sentence  as  follows:  "  Moral  philosophy, 
morality,  ethics,  and  natural  law  mean  all 
the  same  thing ;  that  science  which  teaches 
men  their  duty  and  the  reason  of  it." 

I  have  gone  through  many  volumes 
written  upon  the  subjects  just  referred  to, 


PARTS  OF  THE  SAME  THING.         51 

seeking  for  a  concise  definition  of  morality, 
or  the  definition  of  its  synonyms.  I  find 
these  writers  admitting  great  difficulty  in 
giving  the  definition.  I  find  them  analy- 
zing the  word,  considering  its  component 
elements,  and  devoting  much  time  to  each 
of  these,  taking  the  word  to  pieces,  and 
spending  much  time  in  defining,  specifying, 
and  explaining  the  nature  and  office  of  the 
pieces,  and  I  must  admit  great  disappoint- 
ment in  finding  that  they  fail  to  put  the 
pieces  back  together,  and  tell  us  what  the 
structure  is.  They  give  the  component 
parts,  but  not  the  composition.  If  morality 
is  a  foundation  stone  or  a  pillar  in  the  con- 
struction of  the  State,  we  certainly  can  lay 
our  hands  upon  that  corner  stone  or  upon 
that  pillar.  The  more  books  that  have  ap- 
peared upon  this  subject,  the  greater  the  un- 
certainty in  the  public  mind.  If  there  is 
such  a  thing  as  morality,  we  must  be  able 
to  know  what  it  is.  If  it  cannot  be  defined, 
it  cannot  be  understood ;  if  it  has  no  stand- 
ard, it  is  not  practical ;  if  it  cannot  be  iden- 
tified, it  is  a  myth.  Theologians  confuse  it 
with  religion,  and  lose  sight  of  it  in  its  civil 
character.  Philosophers  and  metaphysicians 
tear  it  to  pieces  and  fatigue  the  life  out  of 


52         MORAL  LAW  AND  CIVIL  LAW 

it,  and  often  leave  it  so  disfigured  that  its 
best  friends  cannot  recognize  it.  We  com- 
mon people  of  average  intelligence  want, 
and  must  have,  some  definition,  concise,  in 
plain  English  language,  of  this  great  subject 
that  we  can  understand.  We  common  peo- 
ple must  have  erected  in  our  midst  a  stand- 
ard to  which  we  may  look  and  live,  while 
we  and  our  families  are  being  bitten  by 
these  fiery  serpents  that  are  everywhere  in 
society.  It  seems  to  me  in  this  great  emer- 
gency we  must  look  to  the  civil  law  for  in- 
formation and  relief.  In  fact  that  is  the 
source  from  which  the  information  should 
and  must  come,  when  we  seek  the  civil  and 
legal  standard  of  morality.  Let  it  be  borne 
in  mind  that  morality  is  not  religion.  It 
has  sometimes  been  said  that  men  make 
their  morality  their  religion,  and  expect  to 
be  saved  by  it.  In  such  a  case  morality  be- 
comes religion  to  the  individual,  and  in  it 
and  by  it  he  performs  his  acts  of  worship  of 
some  supreme  being.  Whether  he  can  be 
saved  thereby  is  no  part  of  the  subject  I  am 
now  considering.  Morality  is  for  this  life 
only.  Morality  is  purely  a  civil  condition ; 
refers  to  the  citizen,  to  the  individual  in 
his  relations  to  other  people  and  society. 


PARTS  OF  THE  SAME  THING.         53 

I  propound  the  hard  question,  if  it  is  so 
understood,  for  the  purpose  of  answering 
the  same,  without  evasion  or  equivocation 
— What  is  meant  in  Law  by  the  word 
"  Morality?" 

In  the  case  of  Lyon  vs.  Mitchell,  36th  N. 
Y.,  235,  the  Court  of  Appeals,  in  a  decision 
of  a  question  properly  before  it,  said :  *  *  The 
defendant,  I  think,  has  no  right  to  ask  a 
charge  that  (as  asked  in  the  lower  court) 
any  contract  which  conflicts  with  the  morals 
of  the  time  is  void,  as  being  against  public 
policy.  To  make  such  a  contract  thus  void 
it  must  be  against  sound  morals,  as  defined 
by  Paley  to  be  '  that  science  which  teaches 
men  their  duty,  and  the  reason  of  it' 
(Paley  Moral  Philosophy,  B.  i,  C.  i).  'Mo- 
rality is  the  rule  which  teaches  us  to  live 
soberly  and  honestly.  It  hath  four  chief 
virtues — justice,  prudence,  temperance,  and 
fortitude/ 

"  To  make  a  contract  void  on  the  princi- 
ple claimed,  it  must  be  against  morality  as 
thus  defined.  The  morals  of  the  time  may 
be  vicious;  public  sentiment  may  be  de- 
praved ;  the  people  may  have  gone  astray 
so  that  not  one  good  man  can  be  found. 
Sound  morals,  as  taught  by  the  wise  men  of 


54        MORAL  LAW  AND  CIVIL  LAW 

antiquity,  as  confirmed  by  the  precepts  of 
the  Gospel,  and  as  explained  by  Paley  and 
Home,  are  unchanged.  They  are  the  same 
yesterday  and  to-day. " 

This  decision  has  been  cited  with  ap- 
proval in  New  York  a  number  of  times  and 
in  subsequent  decisions,  and  has  never  been 
criticised  or  rejected  by  the  Supreme  Court 
of  any  State,  so  far  as  I  have  been  able  to 
find. 

In  the  American  and  English  Encyclopedia 
of  Law,  Vol.  XV,  page  716,  this  definition 
of  morality  is  quoted  in  the  text  as  settled 
law,  and  this  case  is  cited. 

In  the  case  of  Baltimore  and  Potomac 
Railway  Co.  vs.  The  5th  Baptist  Church, 
108  U.  S.  Supreme  Court  Report,  page  739, 
among  other  things  in  applying  the  rules  of 
law  in  that  case,  the  court  said : 

' '  Whatever  the  extent  of  the  authority 
conferred,  it  was  accompanied  with  this  im- 
plied qualification,  that  the  works  should 
not  be  so  placed  as  by  their  use  to  unrea- 
sonably interfere  with  and  disturb  the 
peaceful  and  comfortable  enjoyment  of 
others  in  their  property.  Grants  of  privi- 
leges or  powers  to  corporate  bodies  like 
these  in  question  confer  no  license  to  use 


PARTS  OF  THE  SAME  THING.         55 

them  in  disregard  of  the  private  rights  of 
others,  and  with  immunity  for  their  inva- 
sion. The  great  principle  of  the  common 
law,  which  is  equally  the  teaching  of  Chris- 
tian morality,  to  so  use  one's  property  as  not 
to  injure  others,  forbids  any  other  application 
or  use  of  the  rights  and  powers  conferred." 

The  point  distinctly  presented  in  the 
decision  last  cited  in  the  quotation  I  make 
from  it,  to  which  I  call  attention,  is  the 
declaration  of  the  highest  judicial  tribunal 
in  this  land,  that  common  law  morality  and 
Christian  morality  are  the  same. 

In  Leiber  on  Penal  Law,  2nd  Lieber's 
Miscellaneous  Works,  471,  the  author  says: 
"  At  common  law,  indictability  and  im- 
morality are  convertible  terms." 

In  Wharton's  Criminal  Law,  Vol.  I,  sec. 
140,  the  author  quotes  the  foregoing  expres- 
sion from  Leiber,  and  modifies  slightly  the 
claim  of  Leiber  by  saying,  "  There  are  some 
immoral  acts  which  are  not  indictable,  and 
some  indictable  acts  which  are  not  immoral ; " 
but  he  says :  * '  If  we  were  required  to  sup- 
ply a  further  test,  we  might  say  that  public 
policy  demands  the  indictability  of  all  im- 
moral acts  of  which  punishment  by  law  is 
the  proper  retribution." 


56        MORAL  LAW  AND  CIVIL  LAW 

In  Wells's  Pollock  on  Torts,  American 
Edition,  1894,  page  12,  the  author  gives  as 
the  subject  of  a  paragraph,  "  Relation  of 
the  Law  of  Torts  to  the  semiethical  precept, 
'  Alterum  non  laedere '  ('  Thou  shalt  do  no 
harm  to  thy  neighbor')." 

Discussing  this  subject,  he  says:  "We 
have  then  three  main  divisions  of  the  law 
of  torts.  In  one  of  them,  which  may  be 
said  to  have  a  quasi  criminal  character, 
there  is  a  very  strong  ethical,  moral  ele- 
ment. In  another  no  such  element  is  ap- 
parent. In  the  third  such  an  element  is 
present,  though  less,  and  manifestly  so. 
Can  we  find  any  category  of  human  duties 
that  will  approximately  cover  them  all,  and 
bring  them  into  relation  with  any  single 
principle?  Let  us  turn  to  one  of  the  best 
known  sentences  in  the  introductory  chapter 
of  the  Institutes  copied  from  a  lost  work  of 
Ulpian :  'Juris  percepta  sunt  haec ;  honeste 
vivere  alterum  non  laedere,  suum  cuique 
tribuere  ' — *  The  maxims  of  the  law  are 
these:  Thou  shalt  live  honestly.  Thou  shalt 
do  no  hurt  to  thy  neighbor.  Thou  shalt  give 
everyone  his  due '  ( '  Honeste  vivere ') .  '  Thou 
shalt  live  honestly'  is  a  vague  phrase  enough. 
It  may  mean  refraining  from  criminal  of- 


PARTS  OF  THE  SAME  THING.         57 

fenses,  or  possibly  good  behavior  in  social 
and  family  relations  ('suum  cuique  tribuere') 
'Thou  shalt  give  everyone  his  due'  seems  to 
fit  pretty  well  with  the  law  of  property  and 
contract.  And  what  of  '  alterum  non  lae- 
dere?'  (*  thou  shalt  do  no  hurt  to  thy  neigh- 
bor.') Our  law  of  torts,  with  all  its  irregu- 
larities, has  for  its  main  purpose  nothing 
less  than  the  development  of  this  precept. 
This  exhibits  it,  no  doubt,  as  the  technical 
working  out  of  a  moral  idea  by  a  positive 
law,  rather  than  the  systematic  applica- 
tion of  any  distinctly  legal  conception.  But 
all  positive  law  must  presuppose  a  moral 
standpoint,  and  at  times  more  or  less  open- 
ly refer  to  it,  and  the  more  so  in  proportion 
as  it  has,  or  approaches  to  having,  a  penal 
character." 

In  Law  of  Torts,  by  Piggott,  page  208,  on 
the  subject  of  frauds  he  says:  "  It  will  be 
noticed  that  we  have  ignored  the  distinction 
between  legal  and  moral  fraud  sometimes 
drawn.  *  I  am  of  the  opinion,'  said  Brom- 
well,  L.  J.,  in  Weir  vs.  Bell  (3  ex.  D.,  243), 
'  that  to  make  a  man  liable  for  fraud,  moral 
fraud  must  be  proved  against  him.  I  do 
not  understand  legal  fraud.  To  my  mind, 
it  has  not  more  meaning  than  legal  heat  or 


58        MORAL  LAW  AND  CIVIL  LAW 

legal  cold,  legal  light  or  legal  shade.  There 
never  can  be  a  well-founded  complaint  of 
legal  fraud,  or  of  anything  else,  except 
where  some  duty  is  shown,  and  correlative 
right  and  some  violation  of  that  duty  and 
right.  .  .  .'  In  truth  we  are  discussing 
the  legal  aspect  of  a  moral  question,  and, 
as  we  have  seen,  the  common  law  does  prac- 
tically adopt  the  same  standard  as  morality. 
The  apparent  exception  to  which  '  legal 
fraud '  is  sometimes  attached  is  the  lia- 
bility of  the  principal  for  the  fraud  of  his 
agent ;  but  this  may  be  rested  on  another 
moral  ground.  His  claim  to  take  advan- 
tage of  his  agent's  fraud  is  in  itself  a  moral 
fraud." 

Sheldon  Amos,  M.A.,  Professor  of  Juris- 
prudence in  University  of  London,  very 
high  authority  on  any  subject  which  he 
touches,  from  whom  I  have  hereinbefore 
quoted,  in  a  book  entitled  A  Systematic  View 
of  the  Science  of  Jurisprudence,  on  page  516 
says: 

' '  There  exists  somewhere  a  true  and 
common  canon,  or  standard  of  action,  in- 
flexible in  itself,  and  yet  withal  admitting 
of  an  easy  adjustment  and  the  most  exquisite 
modulations  for  all  members  of  society, 


PARTS  OF  THE  SAME  THING.         59 

which,  the  more  habitually  each  member 
adopts,  the  vaster  is  the  expansion  of  which 
his  own  nature  is  capable,  and  the  less  is 
the  chance  of  the  need  of  interruption  to 
others ;  and  which  the  more  habitually  all 
men  adopt,  the  more  freely  and  harmoni- 
ously the  general  machinery  of  social  inter- 
course works.  This  canon  or  standard  of 
action  is  hard,  indeed,  to  discover,  and  par- 
ticular societies  may  spend  long  ages  in  un- 
availing efforts  to  discover  it.  ...  This 
canon  or  standard  of  action,  including  here 
under  the  term  action  all  the  thoughts  and 
feelings  that  give  it  life  and  warmth,  is  ab- 
solute morality.  It  is  only  the  visible  image 
of  the  mechanical  scaffolding  of  this  that  is 
designated  by  the  phrase,  *  National  law.' ' 

When  the  law  by  its  expansion  and  its 
nearer  approach  to  the  image  of  absolute 
morality  becomes,  as  the  author  says,  "a 
mode  of  benevolent  guidance  and  aid," 
then,  as  he  continues,  it  "characteristically 
stands  forth  as  the  ever  present  and  incarn- 
ate witness  of  that  ultimate  morality  of 
which  it  is,  at  best,  no  more  than  the  sym- 
bol and  the  counterpart." 

This  distinguished  author  closes  his  work 
as  follows : 


60        MORAL  LAW  AND  CIVIL  LAW 

' '  It  is  not  then  in  law  nor  in  government 
that  hope  must  be  placed  for  the  direct  cul- 
ture of  a  nation's  vitality.  It  is  in  moral 
and  spiritual  efforts,  whether  expressed  in 
salutary  and  silent  influences  or  in  highly 
systemized  organizations.  ...  In  a  word, 
it  is  to  these  direct  inspirers  of  human  vir- 
tue and  energy  that  law  itself  must  turn  in 
order  to  find  at  hand  a  race  of  citizens 
whose  dearest  concern  will  be  to  obey,  to 
cherish,  and  to  reform  it." 

There  seems  to  be  a  general  impression 
abroad  that  the  word  ' '  morality  "  is  a  general 
term  like  the  words  "cattle"  and  "  horses," 
and  that  it  includes  many  different  varie- 
ties. Under  this  false  idea  morality,  as  ap- 
plied to  the  ministers  of  the  Gospel,  is  one 
thing;  to  the  teacher,  another  thing;  to 
the  attorney,  another  thing ;  to  the  business 
man,  another  thing ;  and  to  the  applicant 
for  license  to  sell  intoxicating  liquors,  it  is 
anything  for  his  especial  benefit.  It  is  high 
time  for  earnest  teaching  to  correct  these 
errors  in  the  public  mind.  Morality  is  like 
truth ;  it  has  no  varieties.  It  is  the  same 
thing  in  every  place  and  relation ;  whether 
it  appears  in  the  pulpit,  in  the  business  trans- 
action, in  the  court  of  justice,  in  the  home, 


PARTS  OF  THE  SAME  THING.         61 

or  in  political  affairs.  It  is  one  thing  that 
cannot  be  adjusted  to  accommodate  the  ne- 
cessities of  any  man  or  any  business.  In  the 
language  of  the  highest  court  in  the  State 
of  New  York,  heretofore  quoted,  but  which  I 
repeat  because  of  the  great  value  there  is  in 
the  expression,  "  Sound  morals,  as  taught 
by  the  wise  men  of  antiquity,  as  confirmed 
by  the  precepts  of  the  Gospel,  and  as  ex- 
plained by  Paley  and  Home,  are  unchanged. 
They  are  the  same  yesterday  and  to-day." 

Let  it  be  fully  understood  that  in  legal 
contemplation,  thoroughly  settled,  Christian 
Morality,  Statutory  Morality,  Constitutional 
Morality,  Common  Law  Morality,  Common 
Sense  Morality,  and  Morality  are  all  the  same 
thing.  Whenever,  wherever,  and  in  what- 
ever connection  the  word  "morality"  is 
used,  it  means  morality.  If  ever  used  in  any 
other  sense,  it  is  improperly  used.  Simpli- 
fying the  legal  standard,  it  may  be  easily 
understood  that  the  law  considers  questions 
of  morality  as  governed  by  the  golden  rule. 

There  is  not  any  standard  of  religious 
creed.  A  man  may  profess  any  kind  of  re- 
ligious belief  that  is  not  immoral  and  does 
not  violate  any  civil  law. 

Mormonism  was  only  unlawful  so  far  as  it 
5 


62         MORAL  LAW  AND  CIVIL  LAW 

was  immoral,  and  its  immorality  consisted 
in  recognizing  the  plurality  of  wives. 

There  is  a  legal  standard  of  morality  up 
to  which  every  man  must  come,  and  the 
standard  is  the  same  in  every  State.  This 
is  fixed  and  required,  like  standards  of 
weights  and  measurements.  The  standards 
of  weights  and  measurements  might  be 
changed,  but  the  standard  of  morality  can- 
not be.  It  has  been  settled  and  fixed  as 
the  work  of  all  the  learning,  wisdom,  and 
experience  of  the  past,  in  fact,  by  a  super- 
natural influence,  and  cannot  be  changed. 

Civil  government,  applying  this  standard 
to  business  affairs,  will  compel  full  measure- 
ment, full  weight,  full  count,  and  that  the 
goods  come  up  to  the  sample.  This  is  ab- 
solutely necessary  to  promote  and  protect 
business  affairs. 

If  civil  government  were  to  give  its  whole 
attention  to  the  cultivation  of  the  youth  in 
high  integrity  in  business  affairs  only,  and 
the  punishment  of  offenses  against  the  rules 
of  morality  in  this  regard  only,  how  long 
could  it  hold  together?  The  social  affairs  of 
her  citizens  are  of  the  most  importance  to 
the  government,  and  are  not  to  be  neglected. 

A    young   man    from   a  farm  not  many 


PARTS  OF  THE  SAME  THING.         63 

years  ago  presented  himself  to  the  presi- 
dent of  the  Indiana  State  University,  and 
said  he  had  determined  to  become  a  public 
speaker,  and  had  come  to  study  grammar. 
The  president  asked  him  what  else  he  de- 
sired to  study.  He  said,  "  Nothing  else." 
The  president  said,  ' l  We  cannot  teach  you 
grammar  by  itself.  You  must  take  other 
studies  with  it."  The  young  man  said, 
"Why,  is  not  grammar  in  a  book  by  itself?" 
The  president  said,  *  *  Did  you  ever  try  on 
the  farm  at  home  to  fatten  only  one  quarter 
of  a  beef  at  a  time?"  He  answered,  "No; 
you  cannot  fatten  a  beef  at  all,  unless  you 
fatten  it  all  together."  The  president  said, 
"So  you  must  fit  yourself  all  together  if  you 
expect  to  meet  your  ambition." 

The  government  can  only  be  safe  when 
her  citizens  are  developed  and  regulated  by 
the  moral  standard  as  applied  alike  to  busi- 
ness, educational,  and  social  affairs.  The 
leaders  in  strikes  and  mobs,  who  block  and 
terrorize  business,  disregard  morality  in 
social  affairs,  and  do  not  believe  that  mo- 
rality exists  in  business  affairs,  are  the  prod- 
ucts of  false  teachings  on  morality  in  civil 
affairs. 

It  is  more  important  to  the  government 


64        MORAL  LAW  AND  CIVIL  LAW 

that  a  citizen  should  be  moral  than  that  he 
should  be  religious,  but  religion  is  the  great- 
est teacher  upon  the  subject  of  morality. 
This  is  the  reason  why  the  law  encourages 
religion  and  religious  worship. 

It  has  been  held  in  various  States,  es- 
pecially in  Pennsylvania  by  her  Supreme 
Court,  that  the  Christian  religion  is  a  part 
of  the  law  of  the  land,  and  that  the  system 
of  morality  as  represented  and  defined  by 
the  Christian  religion  is  the  standard  of 
morality  in  this  nation. 

Paley  combined,  in  one  treatise,  moral  and 
political  philosophy.  He  laid  down  the  rigid 
rules  of  morality  as  they  were  in  his  day,  and 
had  been  from  time  immemorial,  and  ever 
must  be.  Yet  he  has  been  charged  by  high 
authority  with  attempting  to  modify  them  a 
little  to  accommodate  aristocratic  influences. 

When  the  word  "  morality  "  was  used  in 
the  Constitution  of  Indiana  in  1851,  and 
made  the  first  and  most  important  subject 
upon  which  the  Legislature  is  commanded  to 
act,  it  must  be  presumed  that  it  was  so  used 
in  contemplation  of  its  history  and  full 
meaning,  not  only  as  understood  in  1851, 
but  also  as  its  fullness  and  meaning  shall 
appear  in  1951,  and  always. 


PARTS  OF  THE  SAME  THING.        65 

It  is  my  purpose  to  aid  in  correcting  the 
impression  that  there  are  different  kinds 
and  standards  of  morality. 

There  is  only  one  kind,  and  only  one  standard 
of  morality,  known  to  the  civil  law. 

This  is  true  in  every  State  and  by  the  laws 
of  the  United  States. 

Then,  when  we  speak  of  moral  law  and 
civil  law,  we  mean  parts  of  the  same  thing. 

Using  commonplace  terms,  morality  and 
moral  character  is  each  made  of  the  follow- 
ing elements  in  equal  parts : 

1 .  Fair  dealing  in  business  and  social  life. 

2 .  The  exertion  of  a  good  influence  in  all 
relations ;   and, 

3.  Faithful  obedience  to  the  law. 

Every  man  knows  either  one  of  these  ele- 
ments when  he  sees  it,  or  hears  it,  or  feels  it. 
Every  man,  I  mean  every  man  who  knows 
enough  to  exercise  the  privileges  of  citizen- 
ship in  any  form,  in  fact,  knows  full  well  what 
morality  and  moral  character  are  in  every 
other  form  except  in  legal  contemplation. 
My  purpose  is  to  make  clear  and  to  emphasize 
the  most  important  fact,  that  morality  and 
moral  character  are  exactly  the  same  in  legal 
contemplation  as  they  are  when  viewed  from 
any  other  established  standpoint. 


66        MORAL  LAW  AND  CIVIL  LAW 


CHAPTER  IV. 

WHAT    IS    IMMORALITY? 

IT  may  seem  unnecessary  to  ask  such  a 
question.  It  may  seem  that  this  is  a 
foolish  question.  However,  my  obser- 
vation leads  me  to  believe  that  there  is  a  very 
great  uncertainty  in  the  public  mind  upon 
this  subject,  especially  as  to  the  legal  com- 
prehension of  the  word  ll  immorality."  Let 
it  be  kept  in  mind  that  I  am  considering 
every  matter  in  this  work  from  a  legal  stand- 
point only.  I  use  Indiana  as  an  illustration 
of  what  is  true  of  every  State  in  this  gov- 
ernment. I  must  depend  upon  illustrations 
from  this  State,  because  to  follow  the  sub- 
ject as  it  has  run  through  all  the  States  is 
unnecessary  for  the  purpose  of  this  work. 
The  illustrations  I  shall  use  can  be  pursued 
by  the  citizens  of  any  State,  and  would  be 
found  to  apply  as  forcibly  in  any  other  State 
as  in  Indiana. 

The  Legislature  in  Indiana  has  passed  laws 
defining  offenses,  every  one  of  which  any 
candid  person  will  admit  is,  independent  of 


PARTS  OF  THE  SAME  THING. 


67 


civil  laws,  an  immoral  act.  These  offenses, 
which  are  essentially  wrong  and  immoral, 
are  forbidden  by  law  as  a  public  necessity. 
For  the  purpose  of  showing  the  extent  to 
which  our  Legislature  has  gone  I  quote  the 
subjects  of  criminal  statutes  in  our  State : 

Women  Soliciting  Medicine 

for  Miscarriage. 
Libel. 
Blackmailing. 


Treason. 

Misprision  of  Treason. 
Murder  in  First  Degree. 
Murder  by  Duel  in  the  State. 


Murder  by  Duel  Outside  of 
the  State. 

Murder  in  Second  Degree. 

Manslaughter. 

Assault  and  Battery  with 
Intent. 

Assault. 

Assault  and  Battery. 

Malicious  Mayhem. 

Simple  Mayhem. 

Robbery. 

Kidnapping. 

Child  Stealing. 

Rape. 

Rape  of  Insane  Women. 

Poisoning  with  Intent  to 
Kill. 

Poisoning  Springs,  etc. 

Prescribing  Medicines  when 
Drunk. 

Prescribing  Secret  Medicine. 

Attempting  to  Procure  Mis- 
carriage. 


Arson. 

Burning  Woods,  Prairies,etc. 

Burglary. 

Housebreaking  in  Daytime 
to  Steal. 

Entering  House,  etc.,  to 
Commit  Burglary. 

Housebreaking  to  Commit 
Violence. 

Petit  Larceny. 

Receiving  Stolen  Goods. 

Secreting  a  Will. 

Stealing  Public  Records. 

Officer  Stealing  or  Destroy- 
ing Records. 

Altering  Records. 

Carrying  off  Fruits,  etc. 

Trespass. 

Embezzlement  of  Public 
Funds. 

Embezzlement  by  Officers. 

Embezzlement  by  Em- 
ployees. 


68 


MORAL  LAW  AND  CIVIL  LAW 


Embezzlement  by  Lawyers 
and  Collectors. 

Embezzlement  by  Railroad 
Employees. 

Embezzlement  by  Innkeep- 
ers and  Carriers. 

Embezzlement  by  Bailee. 

Embezzlement  by  Tenants. 

Embezzlement  by  Treasur- 
ers. 

Embezzlement  of  Public 
Funds. 

Embezzlement  of  Fiduci- 
aries. 

Malicious  Trespass. 

Selling  and  Secreting  State 
Arms. 

Removing  Mortgaged 
Goods. 

Injuring  Telegraph  or  Tele- 
phone Poles  or  Wires. 

Running  Hand  Car  without 
Authority. 

Obstructing  Railroad  Track. 

Injuring  Vines  and  Trees. 

Defacing  Tombstones. 

Injuring  Trees  on  Highway. 

Obstructing  Highway. 

Cutting  Shade  Trees. 

Altering  or  Removing  Land- 
marks. 

Defacing  Legal  Advertise- 
ments. 

Pasting  Bills  on  Building. 

Altering  Marks. 


Forcible  Entry  or  Detainer. 

Defacing  Library  Books. 

Unauthorized  Military  Ex- 
pedition. 

Aiding  Hostile  Army. 

Privateering. 

Challenge  to  Duel. 

Dueling. 

Prize  Fighting. 

Affray. 

Riot. 

Rout. 

Provocation. 

Drawing  Dangerous  Weap- 
on. 

Carrying  Dangerous  Weap- 
on. 

Furnishing  Deadly  Weapon 
to  Minor. 

Disturbing  Meetings. 

Bigamy. 

Incest. 

Adultery  and  Fornication. 

Seduction. 

Enticing  Females  to  House 
of  111  Fame. 

Keeping  House  of  111  Fame. 

Public  Indecency. 

Disposing  of  Obscene  Lit- 
erature. 

Sending  Obscene  Litera- 
ture. 

Advertising  Drugs  for  Fe- 
male Use. 

Profanity. 


PARTS  OF  THE  SAME  THING. 


69 


Sabbath  Breaking. 

Houses  of  Assignation. 

Pimp. 

Prostitution. 

Letting  Stallions  in  Public. 

Sodomy. 

Playing  Baseball  on  Sun- 
day. 

Perjury. 

Perjury  in  Voluntary  Affi- 
davit. 

Subornation  of  Perjury. 

Bribery  of  Public  Officers. 

Bribery  of  Jurors. 

Compounding  Felonies. 

Compounding  Misdemean- 
ors. 

Compounding  Prosecution. 

Concealing  Criminals. 

False  Personation. 

Producing  False  Heir. 

Substituting  Child. 

Extortion. 

Judge  Practicing  Law. 

County  Officer  Practicing 
Law. 

Holder  of  Office  Acting  as 
Notary. 

Falsely  Attesting  Affidavit. 

Falsely  Attesting  Acknowl- 
edgment. 

Officer  not  Explaining  In- 
strument. 

Notary  Acting  after  Office 
Expires. 


Justice  or  Constable  Pur- 
chasing Judgment. 

Suffering  Capital  Criminal 
to  Escape. 

Suffering  Felon  to  Escape. 

Aiding  Prisoner  to  Escape. 

Aiding  Convict  to  Escape. 

Aiding  Prisoner  to  Escape 
from  Jail. 

Suffering  Person  Charged 
with  Misdemeanor  to  Es- 
cape. 

Obstructing  Writ  of  Habeas 
Corpus. 

Obstructing  any  Legal  Proc- 
ess. 

Convict  Escaping  from  State 
Prison. 

Disobeying  Subpoena  for 
Citation. 

Corruptly  Influencing  Ju- 
rors. 

Suffering  Jail  to  be  Unclean. 

Cruelty  to  Poor. 

Official  Negligence. 

Refusing  to  Aid  Officer. 

Common  Barrator. 

Usurpation  of  Office. 

Officer  Acting  without 
Qualifying. 

Intoxicated  Officer. 

Keeping  County  Office  in 
Improper  Place. 

Officers  Discounting  Or- 
ders. 


70        MORAL  LAW  AND  CIVIL  LAW 


Extortion  from  Pensioners. 

Officer  Interested  in  Public 
Contracts. 

Township  Trustee  Refus- 
ing to  Pay  Just  Demand. 

Bribery  of  Officer. 

Auditor  of  State  Drawing 
Warrant  Illegally. 

StateOfficer  notAccounting. 

ObstructingExamination  of 
State  Treasury. 

False  Report  as  to  Treasury 
of  State. 

State  Treasurer  Paying  Il- 
legally. 

State  Treasurer  Using  False 
Voucher. 

Defalcation  of  State  Treas- 
urer. 

Breaking  Quorum  in  Com- 
mon Council. 

Breaking  Quorum  in  Gen- 
eral Assembly. 

Neglect  of  Roads. 

Recording  Deed  without 
Transfer. 

Misfeasance  of  Clerk  of 
Printing  Bureau. 

Misfeasance  of  Inspector  of 
Grain. 

Public  Nuisance. 

Creating  Stagnant  Water. 

Nuisance  by  Dead  Animals. 

Selling  Unwholesome  Pro- 
visions. 


Selling  Diseased  Animals. 

Selling  Unwholesome  Milk. 

Adulterating  Native  Wines. 

Adulterating  Liquors. 

Making  or  Selling  Poison- 
ous Liquors. 

Befouling  Water. 

Selling  Oleomargarine. 

Adulteration  of  Vinegar. 

Selling  Uninspected  Meat. 

Raffling. 

Lotteries  and  Gift  Enter- 
prises. 

Advertising  Lotteries. 

Betting  and  Pool  Selling. 

Keeping  Gaming  Houses. 

Keeping  Room  for  Pool 
Selling. 

Inducing  Minors  to  Gamble. 

Gaming. 

Bunco-steering. 

Common  Gambler. 

Keeping  Devices  for  Gam- 
bling. 

Allowing  Minors  to  Play  at 
Gaming. 

Selling  Liquor  to  Drunken 
Man. 

Selling  Liquor  to  Habitual 
Drunkard. 

Selling  Liquor  to  Minor. 

Misrepresenting  Age  to  Ob- 
tain Liquor. 

Furnishing  Liquor  to  Pris- 
oners. 


PARTS  OF  THE  SAME  THING. 


Keeping  Disorderly  Liquor 

Shop. 

Selling  Liquor  on  Sunday. 
Druggist  Selling  Liquor  on 

Sunday. 

TradingNearCampMeeting. 
Cruelty  to  Animals. 
Suffering   Glandered  Horse 

at  Large. 
Allowing  Diseased  Sheep  at 

Large. 

Bringing  in  Texas  Cattle. 
Killing  Deer. 
Hunting  Quails,  Pheasants, 

or  Wild  Turkeys. 
Taking  Prairie  Chickens. 
Destroying  Birds. 
Destroying    Woodcock     or 

Wild  Duck. 
Hunting   on  Lands  without 

Consent  of  Owner. 
Injuring      Property     while 

Hunting. 
KeepingQuail,etc.,forSaleat 

Certain  Times  of  the  Year. 
Carrying    Game    Killed    in 

Violation  of  Law. 
Selling  Game  not  Shot. 
CarryingGamebeyondState. 
Killing  Wild  Pigeons. 
Spearing  or  Trapping  Fish. 
Stretching    Net  near  Ohio 

River. 

Poisoning  Fish. 
Using  Seines,  Dynamite,etc. 


SellingCanada  Thistle  Seed. 

Allowing  Canada  Thistle  to 
Grow. 

Suffering  Growth  of  Canada 
Thistle. 

Gathering  Cranberries  on 
Public  Lands. 

Overworking  Children  at 
Factories. 

Preventing  a  Person  from 
Working. 

Impeding  Railroad  Travel. 

Disclosing  Contents  of  Tele- 
gram. 

Disclosing  Contents  of 
Telephone  Message. 

Promoting  Divorces. 

False  Labels  of  Weights. 

Altering  Inspector's  Marks. 

Bringing  Pauper  into  State. 

Deserting  Wife  or  Child. 

Vagrancy. 

Tramps. 

Amalgamation. 

Counseling  Amalgamation. 

Swindling  Underwriters. 

Conspiracy. 

Malicious  Prosecution. 

Failing  to  Keep  Light  on 
Drawbridge. 

Obstructing  Navigable 
Streams. 

Maintaining  Bridge  with- 
out Draw. 

Leaving  Bridge  Open. 


MORAL  LAW  AND  CIVIL  LAW 


Injuring  Bridge. 
Driving  on  Towpath. 
Opening  Canal  Blocks. 
Performing  Marriage  Cere- 
mony without  Authority. 
Failing  to  Return  Marriage. 
Giving  False  List  of  Taxa- 

bles. 

Not  Providing  Fire  Escape. 
Obstructing  Road. 
Obstructing  Drainage. 
Obstructing    or     Diverting 

Water. 
Not  Providing  Outswinging 

Doors. 

Defrauding  Creditors. 
Appropriating  Estrays. 
Entry  on  State  Lands. 
Horse  Racing  on  Highways. 
Running  Horses  in  Towns. 
Charging    Illegal    Ferriage 

or  Toll. 

Oppressive  Garnishment. 
Transferring     Claims      for 

Garnishment. 
Selling  Notes  of  Insolvent 

Bank. 

Disturbing  Grave. 
Taking  Corpse. 
Aiding      Concealment      of 

Corpse. 

Buying  Corpse.  A 

Climbing  on  Cars  in  Motion. 
Obstructing  Highways  with 

Cars. 


Running  Passenger  Cars 
without  Tools. 

Engineer  Failing  to  Stop 
at  Railroad  Crossing. 

DeceivingRailroaclEngineer. 

Untimely  Crossing  on  Rail- 
road Track. 

StoppingTrain  on  Crossing. 

Obstructing  Highway  with 
Train. 

Locking  Passenger  Cars. 

Failing  to  Give  Signals. 

Selling  Dangerous  Toys. 

Selling  Examination  Ques- 
tions. 

Pointing  Firearms. 

Permitting  Gambling  on 
Grounds  of  Agricultural 
Society. 

Running  Traction  Engine 
on  Highway  without 
Sending  Man  Ahead. 

Giving  or  Selling  Tobacco 
to  Children. 

Heavy  Hauling  on  Highway 
at  Certain  Times. 

Hunting  Squirrels  at  Cer- 
tain Times. 

Voting  Illegally. 

Voting  in  Wrong  Precinct. 

Nonresident  Voting. 

Importing  Votes. 

Voting  More  than  Once. 

Hiring  Men  to  Vote  or  Re- 
frain. 


PARTS  OF  THE  SAME  THING. 


73 


Selling  Votes. 
Fraud  of  Election  Officer. 
Altering  Returns. 
Refusing  to  Receive  Vote. 
Officer  Persuading  Voter. 
Officer  Opening  or  Marking 

Ticket. 

Deceiving  Illiterate  Voter. 
Defrauding  Voter. 
Using  Violence,  Threats,  or 

Restraints    to    Influence 

Voter. 

Seizing  Ballot  Box. 
Destroying  Ballot   Box   or 

Ballots. 
Inducing   Voter  to   Resign 

Petition. 

Selling  Signature  to    Peti- 
tion. 

Fraud  at  Special  Election. 
Buying  Vote. 

Bribing  to  Secure  Election. 
Bribery  for  Nomination. 
Short  Weights. 
Selling      Coal     by     False 

Weights. 
False  Gas  Meter. 
False  Pretense. 
Presenting  False  Claim. 
Forgery. 

Signing  Blank  Certificate. 
Counterfeiting  Coin. 
Uttering  Counterfeit  Coin. 
Uttering   Counterfeit    Coin 
v    to  Circulate. 


Having  Counterfeit  Coin. 

Having  Counterfeit  Appa- 
ratus. 

Counterfeiting  Labels. 

Having  Dies  to  Counterfeit 
Labels. 

Selling  Goods  with  Counter- 
feit Labels. 

Wearing  Badge  of  Military 
Order  to  Obtain  Assist- 
ance. 

Burning  Natural  Gas  in 
Flambeaux. 

FailureofRailroadCompany 
toProvideWaitingRooms. 

Selling  Merchandise  to  Em- 
ployees at  Higher  Prices 
than  to  Others. 

Wearing  Badge  of  Secret 
Society  when  not  Entitled 
to  do  so. 

Failure  to  Provide  Screens 
for  Employees  of  Street 
Railways. 

Marrying  to  Avoid  Prose- 
cution for  Bastardy  or 
Seduction. 

Horse  Racing  at  Certain 
Times. 

Permitting  Minor  to  Loiter 
about  Saloon. 

Running  Saloon  in  Connec- 
tion with  other  Business. 

Having  Devices  for  Amuse- 
ment or  Games  in  Saloon. 


74        MORAL  LAW  AND  CIVIL  LAW 

In  all  three  hundred  and  twenty. 

The  foregoing  statutes,  it  can  be  seen, 
are,  in  most  cases,  against  classes  of  of- 
fenses in  which  many  acts  in  each  class  are 
included,  so  that  the  number  of  acts  forbid- 
den is  at  least  one  hundred  greater  than 
the  number  I  have  given  in  the  subjects 
named.  Also  add  to  the  foregoing  enu- 
meration offenses  defined  by  acts  of  Con- 
gress against  revenue,  postal  laws,  etc., 
which  apply  in  every  State.  The  Legisla- 
ture might  have  passed  a  sweeping  statute 
forbidding  everything  that  in  its  purpose  or 
effect  is  against  sound  morality.  It  will  be 
seen  that  the  Legislature  has  gone  so  far  in 
its  special  definition  of  forbidden  offenses 
as  to  legislate  even  in  restraint  of  the  tem- 
per and  the  tongue.  The  list  of  forbidden 
acts  is  growing,  not  only  in  the  States  of 
this  Union,  but  with  the  advancing  civili- 
zation of  every  government  of  the  world. 
Profanity  is  immoral,  and  has  been  forbid- 
den by  statute  wherever  civilization  has 
reached  respectable  growth.  Profanity  was 
unlawful  at  common  law,  and  the  only  pur- 
pose accomplished  by  a  statute  upon  this 
subject  is  to  fix  a  penalty.  It  is  often  urged 
that  statutes  should  not  be  enacted  that 


PARTS  OF  THE  SAME  THING.        75 

are  in  advance  of  public  sentiment,  and 
that  if  the  law  cannot  be  enforced  so  as  to 
repress  what  it  forbids  it  should  be  re- 
pealed, so  as  not  to  cause  contempt  for  all 
law.  Statutes  against  profanity  are  so  fre- 
quently and  so  boldly  disregarded  that  they 
stand  almost  as  dead  letters.  No  wise  man, 
however,  would  favor  the  abrogation  of 
these  statutes  and  thereby  remove  the  re- 
straint from  the  brutal  tongue.  Profanity 
was  condemned  by  the  Ten  Command- 
ments more  than  three  thousand  years  ago, 
and  has  been  unlawful  ever  since  by  exist- 
ing law  under  civilized  conditions.  It  must 
not  be  overlooked  that  the  commandments 
were  only  civil  laws,  intended  solely  for 
civil  government.  They  were  each  in  ad- 
vance of  public  sentiment  several  thousand 
years  at  least,  but  are  each  yet  maintained 
with  no  prospect  of  abrogation,  as  standards 
of  human  conduct  required  by  civil  law. 
Nations,  governments,  and  innumerable 
people  have  been  destroyed  because  of  diso- 
bedience to  the  principles  announced,  but 
the  commandments  stand  unchanged  as  the 
law.  No  man  has  a  legal  right  to  be  im- 
moral, or  to  do  any  immoral  thing  where 
any  person  can  hear  or  see  his  act.  He  has 


76        MORAL  LAW  AND  CIVIL  LAW 

no  legal  right  to  associate  with  immoral 
persons  or  characters.  The  civil  law  can 
break  open  the  door  to  the  hiding  place  of 
immorality,  disregard  all  rights  of  liberty 
and  property,  and  drag  the  offender  to  the 
judgment  seat.  The  recent  notorious  case 
of  Oscar  Wilde  is  a  good  illustration  of  the 
relentless  pursuit  of  civil  law  after  private 
sin  and  immorality  and  the  crushing  judg- 
ment against  it. 

The  government  demands  in  imperious 
terms  private  and  public  morality  of  its 
citizens,  and  undertakes  to  enforce  its  de- 
mands. It  expends  fabulous  sums  of  money 
to  educate  and  encourage  the  youth  in  the 
qualities  of  good  citizenship.  No  stronger 
evidence  could  be  adduced  of  the  fixed  and 
dominating  infhience  of  morality  in  govern- 
ment than  the  constitutional  provisions, 
legislative  acts,  judicial  decisions,  and  set- 
tled rules  of  law  upon  the  subject. 


PARTS  OF  THE  SAME  THING.         77 


CHAPTER  V. 

LEGISLATION   AND    MORALITY. 

THE  purpose  of  legislation  is  to  provide 
for  the  emergencies  of  civil  govern- 
ment. The  limits  to  the  power  of  legis- 
lation can  be  stated  in  a  few  words,  without 
entering  into  refinements  of  constitutional 
provisions  or  legal  learning.  The  Legisla- 
ture can  enact  whatever  the  public  necessity 
requires  to  be  enacted  in  order  to  carry  out 
the  purpose  of  the  government,  which  is 
the  promotion  of  the  public  welfare,  and  it 
can  do  no  more.  As  was  clearly  established 
in  the  second  chapter  of  this  work,  morality 
is  the  fundamental  principle  in  civil  govern- 
ment. Therefore  the  Legislature  can,  by  its 
action,  do  whatever  tends  to  promote  mo- 
rality ;  but  any  act  in  antagonism  to  morality 
is  void.  Every  act  of  the  Legislature  must 
be  in  harmony  with  morality. 

Certain  purposes  must  be  in  the  mind  of 
the  Legislature  in  every  act — either  the  en- 
couragement  and   promotion   of   morality, 
intelligence,    or   business    in   the   dealing, 
6 


78        MORAL  LAW  AND  CIVIL  LAW 

associations,  and  deportment  of  men,  or  the 
suppression  of  immorality.  It  will  be  found, 
upon  careful  examination  of  the  civil  and 
penal  statutes,  that  they  seek  to  accomplish 
the  same  ends.  They  seek  to  regulate  and 
provide  for  the  business  transactions  among 
men,  so  as  to  avoid  conflict,  injustice,  or 
oppression.  It  will  also  be  found  upon  care- 
ful examination  that  many  of  the  criminal 
statutes  are  intended  to  enforce  and  protect 
the  provisions  of  legislation  upon  business 
affairs.  It  is  a  great  question  whether 
criminal  statutes  are  not  increasing  more 
rapidly  than  civil  statutes.  In  fact,  if  it 
were  not  for  the  criminal  disposition  in 
business  transactions,  there  would  be  little 
necessity  for  business  regulations  by  law. 
In  every  government  in  Europe,  as  well  as 
in  the  United  States,  the  necessity  is  recog- 
nized for  greater  restraint  by  law  in  the 
interests  of  society  and  business  upon  im- 
morality. A  concise  expression  upon  this 
subject,  which  might  be  multiplied  with 
many  other  extracts  of  similar  import,  I 
quote  from  the  Encyclopedia  Britannica, 
Vol.  XI,  page  1 8,  what  is  said  as  to  this 
line  of  legislation  in  England :  ' '  Coercion 
for  moral  purposes.  The  measures  hereto- 


PARTS  OF  THE  SAME  THING.         79 

fore  noticed  may  in  general  be  justified 
either  on  the  ground  of  inability  of  the  per- 
sons protected  to  help  themselves,  or  on  the 
ground  that  some  good  to  society  as  a  whole, 
or  to  a  large  portion  of  it,  is  secured 
thereby. 

' '  Another  class  of  measures  openly  aims 
at  the  moral  importance  of  the  individuals 
affected  by  them,  and  in  this  class  there  is  an 
amazing  and  alarming  increase.  The  laws 
against  gaming  are  one  of  the  best  examples. 
At  common  law  a  wager  was  a  contract  en- 
forcablebylaw.  Not  content  with  declining 
to  enforce  wagers,  the  State  went  further  and 
tried  to  put  them  down  altogether.  It  made 
lotteries  illegal.  It  visited  with  heavy 
penalties  the  keeping  of  betting  houses  in 
public  places,  the  publication  of  betting 
lists,  etc.  Games  which  lead  to  betting 
are  put  under  the  restraint  of  a  license  sys- 
tem, and  in  some  parts  of  the  provinces  the 
State  orders  its  citizens  not  to  play  billiards 
after  eleven  o'clock  at  night.  .  .  .  The  State 
first  of  all  limits  the  number  of  public  houses ; 
then  it  dictates  directly  the  hours  during 
which  liquor  may  be  bought  and  sold ;  and 
in  Scotland  and  Ireland  it  goes  further,  and 
prohibits  altogether  the  sale  of  liquor  on 


8o        MORAL  LAW  AND  CIVIL  LAW 

Sunday.  A  committee  of  the  House  of 
Lords  has  touched  the  highest  point  of 
government  control  in  proposing  to  em- 
power local  authorities  to  shut  up  all  the 
public  houses  in  their  districts  and  carry  on 
the  business  for  themselves.  There  is  a 
simultaneous  increasing  tendency  to  inter- 
fere with  people's  amusements;  fairs  are 
being  put  down  as  immoral,  music  and 
dancing  require  license  charily  granted,  the 
grip  of  the  chamberlain  over  the  London 
theaters  is  tightening,  and  so  on. 

* '  The  course  of  moral  legislation,  in  fact, 
threatens  to  sweep  away  every  barrier  to 
the  encroachment  of  the  State. 

1 '  The  extended  range  of  government 
interference  in  other  things  has  been  accom- 
panied, as  we  have  seen,  with  a  very  dis- 
tinct recommendation  of  limits,  either  in  the 
rights  of  the  individual  conscience  or  in  the 
capacity  of  adult  manhood  to  manage  its 
own  affairs.  But  acts  of  Parliament  for 
improving  the  moral  characteristics  of  men 
seem  to  recognize  no  limit  at  all.  And  it  is 
a  singular  fact  that  while  this  kind  of  legis- 
lation under  existing  social  arrangements 
fails  to  affect  the  well-to-do  classes,  and  op- 
presses chiefly  the  comparatively  poor,  it  is 


PARTS  OF  THE  SAME  THING.         81 

becoming1  more  and  more  identical  with 
the  popular  party  in  politics,  and  gathers 
strength  with  every  addition  to  the  popular 
element  in  government." 

The  foregoing  statement  is  a  carefully 
prepared  and  unbiased  article  written  and 
published  more  than  fifteen  years  ago. 
Anyone  who  has  observed  the  tendency 
in  Germany,  France,  and  Russia,  or 
smaller  governments  in  Europe,  will 
find  that  what  is  said  of  this  line  of  legisla- 
tion in  England  is  true  of  these  govern- 
ments, though  not  to  the  same  extent,  and 
the  same  is  true  in  the  United  States  and 
in  various  States  in  this  Union.  It  will 
also  be  found  upon  careful  examination 
that  the  purpose  of  this  line  of  legislation  is 
to  promote  morality  and  suppress  immoral- 
ity. We  hear  the  statement  made  by  small 
politicians  and  men  who  only  seek  the  at- 
tainment of  personal  ends,  that  men  cannot 
be  made  moral  by  legislation,  that  morality 
should  be  left  to  the  Church  and  to  religious 
teachers  or  to  home  training.  It  is  amaz- 
ing the  extent  to  which  this  idea  obtains, 
not  only  in  politics  and  partisan  expression, 
but  among  all  classes  of  people.  It  is  not 
only  erroneous,  betraying  dense  ignorance, 


82         MORAL  LAW  AND  CIVIL  LAW 

but  is  very  dangerous.  It  is  to  this  heresy 
we  must  attribute  the  treachery,  scheming, 
and  trickery  of  legislators,  and  sometimes 
of  courts  and  executive  offices.  The  facts 
are,  morality  has  everything  to  do  with 
legislation,  everything  to  do  with  the  execu- 
tive and  judicial  departments,  and  every- 
thing to  do  with  everything  when  civil 
government  is  in  safe  hands. 

The  great  misfortune  in  legislation  is  that 
each  legislative  body  feels  that  it  is  not 
governed  by  ancient,  long-settled,  and  well- 
determined  rules,  that  it  is  largely  inde- 
pendent and  unrestricted  by  precedents. 
Considering  the  ignorance  so  often  found  in 
legislative  bodies,  the  utter  lack  of  experi- 
ence and  the  weakness  of  so  many  of  the 
members,  the  skillful  manipulators  and 
light  regard  for  consequences,  it  is  not 
surprising  that  wise  men  have  dreaded  and 
feared  the  work  of  legislative  bodies.  Had 
it  not  been  for  the  restraints  against  the 
wrong  and  the  encouragement  for  the 
right  that  sound  morality  has  thrown  over 
these  bodies,  only  disaster  could  have  fol- 
lowed. There  is  no  branch  of  the  govern- 
ment, however,  that  offers  greater  encour- 
agement to  the  student  than  the  legislative, 


PARTS  OF  THE  SAME  THING.         83 

notwithstanding  the  weakness,  inexperi- 
ence, ignorance,  and  corrupting  influences 
and  temptation.  The  history  of  this  branch 
of  government  shows  a  constant  rise  in 
the  scale  of  morality,  whatever  may  some- 
times appear  to  the  contrary.  It  is  con- 
stantly illustrated  that  one  man  of  moral 
integrity  and  average  intelligence  in  a 
legislative  body  is  more  than  the  equal  of 
a  score  of  immoral  and  depraved  members. 

Let  it  not  be  forgotten,  let  it  be  empha- 
sized, repeated,  emblazoned  in  the  halls  of 
every  legislative  body,  that  morality  is  a 
fundamental  principle  in  legislation,  and 
but  for  this  principle,  this  law  of  nature, 
this  law  of  God,  this  law  of  man,  this  good 
angel,  popular  government  would  fail.  Mo- 
rality cannot  be  disregarded  by  the  Legisla- 
ture ;  it  must  be  regarded,  or  the  action  of 
the  body  is  void.  Moral  law  was  not  created 
by  a  legislative  body.  It  was  never  enacted. 
It  was  not  created  by  the  Constitution  of  the 
State  or  of  the  nation.  Neither  the  Consti- 
tution itself  nor  the  Legislature  can  disre- 
gard it  and  the  action  be  valid. 

The  Legislature  may  not  bargain  away 
the  public  morals  permanently.  It  may 
not  do  so  temporarily.  It  cannot  bargain 


84        MORAL  LAW  AND  CIVIL  LAW 

away  the  public  morals  for  one  year,  for 
one  day,  nor  for  one  hour.  Neither  the 
Constitution  nor  the  people  themselves  can 
do  this.  There  is  absolutely  no  power  any- 
where to  bargain  away  or  compromise  pub- 
lic morality.  No  man  can  defeat  and 
destroy  it;  it  stands  as  a  fundamental 
principle.  What  is  meant  by  the  police 
power  of  the  State  is  the  unlimited  law  of 
necessity,  the  authority  in  the  Legislature 
and  the  judiciary  and  the  executive  to  pro- 
tect public  morals,  public  health,  public 
peace,  and  public  welfare  in  all  regards. 


PARTS  OF  THE  SAME  THING.        85 


CHAPTER  VI. 

COMMON   LAW   AND   MORALITY. 

IN  addition  to  statutory  law  we  have  in 
Indiana,  for  our  government,  the  com- 
mon law.      Sec.  236,  Revised  Statutes 
of  1 88 1,  in  Indiana,  reads  as  follows: 

' '  The  law  governing  this  State  is  declared 
to  be  .  .  ."  Item  4.  "  The  common  law, 
and  statutes  of  the  British  Parliament  in  aid 
thereof,  prior  to  the  reign  of  James  I  (ex- 
cept the  second  section  of  the  sixth  chapter 
of  the  forty-third  year  of  Elizabeth  and  the 
ninth  chapter  of  the  thirty-seventh,  Henry 
VIII),  and  which  are  of  a  general  nature  not 
local  to  that  kingdom  and  not  inconsistent 
with  the  first,  second,  and .  third  specifica- 
tions of  this  section." 

Common  law  is  defined  as  follows :  ' '  The 
common  law  is  that  which  derives  its  force 
and  authority  from  the  universal  consent 
and  settled  customs  of  the  people.  It  has 
never  received  the  sanction  of  the  Legisla- 
ture by  express  act,  which  is  the  criterion 
by  which  it  is  distinguished  from  the  statute 


86        MORAL  LAW  AND  CIVIL  LAW 

law.     It  has  never  been  reduced  to  writ- 
ing. 

"  By  this  expression,  however,  it  is  not 
meant  that  all  of  these  laws  are  at  present 
merely  oral,  or  communicated  from  former 
ages  to  the  present  solely  by  word  of  mouth, 
but  that  the  evidence  of  our  common  law  is 
contained  in  our  books  and  depends  on  gen- 
eral practice  and  the  judicial  adjudications 
of  our  courts.  The  common  law  is  derived 
from  two  sources,  the  common  law  of  Eng- 
land and  the  practice  and  decisions  in  our 
own  courts.  There  is  no  general  rule  to  as- 
certain what  part  of  the  English  common 
law  is  binding.  ...  It  may  be  observed 
generally  that  it  is  binding  where  it  has  not 
been  superseded  by  the  Constitution  of  the 
United  States  or  of  the  several  States,  or  by 
legislative  enactments,  or  varied  by  cus- 
tom, and  where  it  is  founded  in  reason  and 
consonant  to  the  common  genius  and  man- 
ners of  the  people.''  No  man  can  make  a 
mark  at  the  place  or  time  where  the  rules  of 
common  law,  or  any  one  of  them,  were 
found ;  neither  can  he  name  the  discoverer. 
However,  as  each  of  these  rules  has  stood 
the  test  of  ages  and  now  prevails  in  Indiana 
and  elsewhere,  and  is  in  perfect  accord  with 


PARTS  OF  THE  SAME  THING.         87 

the  Ten  Commandments  and  the  law  of 
Moses  in  its  general  character,  it  is  a  blessed 
and  easy  thing  for  men  who  believe  in  the 
divine  authorship  of  the  Ten  Command- 
ments to  believe  that  these  same  rulesof  com- 
mon law  were  of  divine  origin.  This  theory 
takes  these  rules  back  to  a  source  of  super- 
human wisdom.  The  method  of  explaining 
rules  and  principles  of  law  as  now  accepted 
by  the  most  profound  writers  and  authorities 
upon  jurisprudence  is  the  historic  method ; 
and  this  method  of  explanation  traces  the 
rules  of  common  law  to  the  source  I  have 
indicated.  Any  other  theory  as  to  the  ori- 
gin of  these  rules  and  principles  of  common 
law  ends  in  mist  and  utter  dissatisfaction. 
The  Supreme  Court  of  the  United  States,  in 
the  case  of  Baltimore  and  Potomac  Railway 
Co.  vs.  5th  Baptist  Church, etc.,  108  U.S.,  739, 
as  a  conclusion  reached  upon  the  somewhat 
lengthy  consideration  of  the  legal  principles 
involved  in  the  case,  said,  '  *  The  great  prin- 
ciples of  the  Christian  religion  are  like  the 
principles  of  the  common  law;"  and  the 
court  proceeded  in  that  case  to  make  an  ap- 
plication of  these  principles. 

In  this  work  I  have  not  stated  and  shall 
not  insist,  because  I  deem  it  unnecessary  to 


88        MORAL  LAW  AND  CIVIL  LAW 

the  purpose  in  hand,  that  Christianity  is 
part  of  the  law  of  the  land,  though  that  maybe 
claimed  by  a  citation  of  the  highest  author- 
ity. I  am  presenting  the  subject  of  morality 
from  a  different  standpoint — from  a  stand- 
point to  be  accepted  by  men  of  any  or  no 
religious  belief.  The  decision  of  the  United 
States  Supreme  Court  just  cited  is  important 
as  declaring  the  law  from  the  highest  judi- 
cial tribunal  in  the  land,  giving  the  source 
of  the  moral  standard.  It  is  not  an  open 
question,  subject  to  controversy  or  debate  in 
either  branch  of  the  law,  whether  statutory 
or  common  law,  that  morality  is  the  funda- 
mental rule  and  principle  by  which  the  law 
is  regulated. 


PARTS  OF  THE  SAME  THING.         89 


CHAPTER  VII. 

MORALITY    IN   CIVIL   COURT. 

THE  moral  law,  with  its  rules  and  stand- 
ard established  by  the  learning,  ex- 
perience, religious  teaching,  divine 
revelation,  and  judicial  decisions  of  the  past, 
is  as  binding  upon  the  citizens  as  the  civil 
law,  because  it  is  a  part  of  the  civil  law. 
Every  legislator,  every  governor,  every 
judge,  every  lawyer,  in  entering  upon  the 
duties  of  his  office,  holds  up  his  hands  to- 
ward heaven  and  takes  an  oath  to  obey  the 
constitution  and  to  perform  the  duties  of  his 
position,  so  help  him  God.  This  appeal  for 
help  to  God  means  something.  It  is  not  an 
empty  form.  Either  it  is  blasphemy,  in 
taking  the  name  of  God  in  vain,  or  is  mock- 
ery, or  is  an  idle  performance,  or  it  is  the  most 
solemn  ceremony  that  can  be  performed. 
The  person  by  whom  this  obligation  is  ad- 
ministered and  the  person  to  whom  it  is  ad- 
ministered are  dissembling  and  are  playing 
the  role  of  the  arrant  hypocrite,  or  else  they 
are  acting  the  part  of  the  highest  citizenship 


go        MORAL  LAW  AND  CIVIL  LAW 

and  highest  patriotism.  It  is  very  clear  that 
Almighty  God  will  not  help  the  legislator, 
nor  the  governor,  nor  the  judge,  nor  the 
attorney  in  any  way  to  establish,  or  protect, 
or  excuse  any  business,  or  transaction,  or 
thing  that  is  against  morality.  Even  if  the 
Legislature  does  attempt  to  give  sanction 
and  confer  its  authority  upon  any  enterprise 
which  is  immoral  in  its  nature  or  which  re- 
sults in  immorality,  then  the  governor  and 
the  judge  have  each  an  oath  registered  in 
heaven  to  declare  such  legislation  void. 
The  United  States  Supreme  Court  in  the 
case  of  Mugler  vs.  Kansas,  123  U.  S.,  205, 
has  defined  the  duty  of  the  court  in  such  a 
case  as  follows : 

' i  The  courts  are  not  bound  by  mere  forms, 
nor  are  they  to  be  misled  by  mere  pretenses. 
They  are  at  liberty,  indeed,  are  under  a 
solemn  duty,  to  look  at  the  substance  of 
things  whenever  they  enter  upon  an  inquiry 
whether  the  Legislature  has  transcended  the 
limits  of  its  authority.  If,  therefore,  a  stat- 
ute purporting  to  have  been  enacted  to 
protect  the  public  health,  the  public  peace, 
or  the  public  safety,  has  no  real  or  substan- 
tial relation  to  these  subjects,  or  is  a  palpa- 
ble invasion  of  rights  secured  by  the  funda- 


PARTS  OF  THE  SAME  THING.         91 

mental  law,  it  is  the  duty  of  the  court  to  so 
declare,  and  thereby  give  effect  to  the  Con- 
stitution." 

Nothing  has  contributed  to  bring  courts 
and  the  legal  profession  into  disrepute,  there- 
by encouraging  mobs  and  white-cap  pro- 
ceedings, so  much  as  the  general  impression 
that  morality  has  not  a  place  in  judicial  pro- 
ceedings, either  in  fact  or  in  theory.  With- 
in the  past  two  years  the  town  of  Roby, 
Indiana,  has  become  distinguished  as  a  loca-, 
tion  of  enterprises  of  "stupendous  character 
for  gambling  and  depravity  of  all  kinds. 
I  have  been  greatly  interested  in  the  discus- 
sion through  the  public  press  and  in  the 
expressions  quoted  from  attorneys  which  as- 
sert that  these  things  have  been  authorized 
by  an  act  of  the  Legislature,  and  therefore 
could  not  be  prevented.  It  would  be  very 
difficult  to  ascertain  just  how  such  conclusion 
was  reached.  As  an  illustration,  one  would 
infer  that  it  had  been  reached  by  turning 
the  pages  of  our  statutes  looking  for  an  en- 
actment concerning  Roby,  Jackson,  and  Cor- 
bett.  Finding  no  act  upon  either  of  these 
specifically,  it  was  then  declared  that,  as  there 
was  no  act  upon  this  subject,  therefore  James 
Corbett  and  Peter  Jackson  could  proceed 


92        MORAL  LAW  AND  CIVIL  LAW 

with  a  prize  fight  at  Roby  without  any  re- 
straint from  the  law.  While  opinions  upon 
this  basis  were  being  freely  given  a  China- 
man was  arrested  in  the  city  of  Indianapolis 
for  the  establishment  and  maintenance  of 
an  opium-smoking  joint.  He  was  brought 
before  the  court  upon  a  criminal  charge  for 
that  offense.  The  same  class  of  attorneys 
and  self-styled  profound  investigators  of  le- 
gal principles,  figuratively  speaking,  turned 
the  pages  of  the  statutes  of  the  State  of  In- 
diana and  the  ordinances  of  the  city  of  Indi- 
anapolis looking  for  enactments  in  regard  to 
Chinamen  and  opium-smoking  joints.  They 
found  no  such  laws.  They  found  no  allu- 
sions to  Chinamen  or  to  opium-smoking 
joints  in  the  statutes  of  the  State  or  in  the 
ordinances  of  the  city ;  but  the  Chinaman 
was  convicted,  fined  $500,  and  sent  to  the 
workhouse  for  six  months.  That  case  was 
clearly  sustained  by  law,  though  not  one 
word  in  regard  to  the  offenses  charged  could 
be  found  in  any  law  book,  or  statute,  or  city 
ordinance.  The  penalty,  however,  was  too 
severe.  The  case  was  founded,  and  prop- 
erly so,  upon  the  immorality  of  the  China- 
man's business  and  its  bad  affect  upon  the 
public  health  and  public  morals.  No  legis- 


PARTS  OF  THE  SAME  THING.         93 

lative  act  could  be  passed  that  could  author- 
ize or  protect  such  a  business.  Neither  could 
any  act  be  passed,  however  solemn  its  form, 
that  would  protect  the  exhibitions  at  Roby. 

As  no  act  of  immorality  can  be  lawful  or 
protected  by  legislation,  so  no  decision  of  a 
court  can  long  stand  that  in  any  way  favors, 
protects,  or  excuses  immorality.  No  act  of 
the  Legislature  that  contemplates  or  results 
in  promoting  immorality  can  be  valid. 

The  judicial  is  the  most  important  branch 
of  any  government.  I  have  called  attention 
to  the  fact  in  a  former  chapter  that  legis- 
lative bodies  were  liable  not  to  feel  them- 
selves bound  by  fixed  and  settled  rules  or 
precedents,  and  were  liable  to  act  upon  the 
impression  of  their  entire  independence. 
This  can  never  be  the  impression  under 
which  courts  of  justice  act.  Courts  are 
bound  by  rules  and  principles  that  have  been 
recognized  and  developed  by  the  learning, 
experience,  and  integrity  of  thousands  of 
years,  and  are  stronger  to-day  in  their  bind- 
ing force  than  they  were  when  Columbus 
discovered  America.  The  most  salutary 
rules  of  law,  or,  properly  speaking,  the  most 
salutary  laws,  were  never  enacted  by  any 

Legislature,   but  have   been    developed  by 

7 


94        MORAL  LAW  AND  CIVIL  LAW 

judicial  decisions.  These  rules  have  been 
settled  by  the  most  profound  learning  and 
experience ;  have  been  thoroughly  consid- 
ered, tested,  applied  to  emergencies,  and 
are  established.  Courts,  in  the  application 
of  these  rules,  have  differed  sometimes, 
misapplied,  overruled  their  own  decisions, 
and  readjusted  their  views  to  meet  the  re- 
quirements of  these  great  principles. 

We  have  often  had  occasion  in  Indiana, 
as  has  been  the  case  in  other  States,  to  ap- 
ply the  rules  of  common  law  to  questions 
where  there  has  been  no  statutory  provision, 
and  these  emergencies  are  likely  to  arise  in 
all  the  future.  There  is  one  distinct,  well- 
defined  principle  running  through  the  civil 
law — the  law  of  Rome — reaching  beyond  the 
Christian  era,  older  than  constitutions  and 
republican  forms  of  government,  and  main- 
tained continuously  down  through  all  exist- 
ing systems  by  judicial  tribunals,  that  moral- 
ity is  to  be  conserved  in  all  judicial  actions. 
It  is  true  that  the  comprehension  of  morality 
was  sometimes  vague,  yet,  as  comprehended, 
it  was  regarded  as  fundamental.  The  time 
and  attention  of  courts,  in  the  United  States 
especially,  are  very  largely  required  in  an 
effort  to  construe  and  apply  well-settled  rules 


PARTS  OF  THE  SAME  THING.        95 

of  law  to  crude  and  badly-considered  legis- 
lative acts,  considered  and  passed  by  legis- 
lative bodies  composed  of  men  who  know 
little  or  nothing  of  legal  principles.  How- 
ever ignorant  or  depraved  the  Legislature 
may  be,  courts  are  bound  to  accept  its  acts 
as  the  law,  if  they  are  harmonious  with  the 
Constitution,  by  using  all  presumptions  in 
their  favor  that  are  consistent  with  funda- 
mental principles. 

The  government  expects  and  demands 
the  exertion  of  each  of  its  departments  in 
one  harmonious  effort  to  promote  the  pur- 
poses for  which  it  exists.  The  departments 
of  government — executive,  legislative,  and 
judicial — can  only  act  legally  within  the  re- 
spective scope  of  each  department.  Each, 
however,  has  to  do  with  the  enactment  of 
laws,  so  far  as  legislation  is  concerned. 
The  judicial  department,  however,  has  not 
only  the  duty  and  responsibility  of  con- 
struing and  declaring  and  settling  the  law 
as  it  is  represented  in  legislative  acts,  but 
has  also  to  apply  these  ancient  principles  of 
the  common  law  in  many  cases,  and,  in  ad- 
dition thereto,  the  rules  of  what  is  generally 
termed  "  public  policy;"  in  other  words, 
"  The  law  of  public  necessity."  The  rules 


96        MORAL  LAW  AND  CIVIL  LAW 

of  public  policy,  or,  what  is  the  same  thing, 
the  law  of  public  necessity,  are  limited  only 
by  the  extent  of  the  necessity.  There  is 
set  up  before  each  department  of  the  gov- 
ernment, however,  a  standard  for  its  guid- 
ance. This  standard  is  public  morality. 
It  must  measure  and  weigh  every  act.  It  is 
the  one  standard,  and  the  only  one,  that 
commands  obedience  in  all  respects. 

In  1840  the  Supreme  Court  of  Indiana 
was  composed  of  three  judges,  each  of  re- 
markable ability  and  high  moral  and  re- 
ligious character.  Without  disparagement 
to  the  reputation  of  any  of  the  learned  and 
good  men  who  have  occupied  the  Supreme 
Bench  in  our  State,  I  can  assert,  without 
offense,  that  that  high  court  has  never  been 
composed  of  men  superior  in  all  regards  to 
Judges  Isaac  Blackford,  Jeremiah  Sullivan, 
and  Charles  Dewey. 

In  the  case  of  Watts,  et  al.  vs.  Pratt,  5th 
Blackford,  337,  Judge  Dewey  delivered  the 
unanimous  opinion  of  the  court  in  concise 
and  clear  language,  defining  the  rule  of  law 
governing  courts  in  such  cases,  in  the  fol- 
lowing language :  '  *  The  subject  of  this 
law  is  to  protect  the  public  morals  and  pre- 
serve the  peace  and  quiet  of  society ;  being 


PARTS  OF  THE  SAME  THING.         97 

designed  for  the  public  good,  it  should  be 
so  construed  as  to  promote  it." 

I  quote  again  in  this  place  what  I  have 
previously  quoted  from  the  Supreme  Court 
of  the  United  States,  because,  this  being  the 
highest  tribunal  in  the  nation,  its  decision 
must  be  taken  as  the  settled  law,  and  I  need 
not  support  the  proposition  further  by  the 
citation  of  many  cases,  as  I  would  otherwise 
feel  compelled  to  do.  The  court  defines  the 
duties  of  courts  as  follows : 

' '  The  courts  are  not  bound  by  mere 
forms,  nor  are  they  to  be  misled  by  mere 
pretenses.  They  are  at  liberty,  indeed,  are 
under  a  solemn  duty,  to  look  at  the  substance 
of  things  whenever  they  enter  upon  an  in- 
quiry whether  the  Legislature  has  tran- 
scended the  limits  of  its  authority.  If,  there- 
fore, a  statute  purporting  to  have  been  en- 
acted to  protect  the  public  health,  the  public 
peace,  or  the  public  safety,  has  no  real  or 
substantial  relation  to  these  subjects,  or  is  a 
palpable  invasion  of  rights  secured  by  the 
fundamental  law,  it  is  the  duty  of  the  court 
to  so  declare,  and  thereby  give  effect  to  the 
Constitution." 

What  is  designated  in  law  as  public  policy 
is  a  matter  of  such  uncertainty,  and  about 


98        MORAL  LAW  AND  CIVIL  LAW 

which  there  is  so  little  general  information, 
that  I  feel  called  upon  to  offer  some  explana- 
tions of  this  term,  because  it  is  the  duty  of  the 
courts  to  determine  what  is  public  policy, 
and  where  it  applies.  In  American  and 
English  Encyclopedia  of  Law,  Vol.  IX,  page 
880,  under  the  heading  "  Public  Policy  Ex- 
plained," the  following  explanation  is  given: 
'  *  This  term  is  equivalent  to  the  policy  of 
the  law.  It  is  applicable  to  the  spirit  as 
well  as  to  the  letter.  Whatever  tends  to  in- 
justice or  oppression,  restraint  of  liberty, 
commerce,  and  natural  or  legal  rights,  what- 
ever tends  to  the  obstruction  of  justice  or 
to  the  violation  of  the  statute,  and  whatever 
is  against  good  morals  when  made  the  ob- 
ject of  a  contract,  is  against  public  policy, 
and  therefore  void,  and  not  capable  of  en- 
forcement. A  form  of  contract  may  be  legal 
on  its  face.  There  may  be  parties,  compe- 
tent, willing,  and  agreed  upon  the  subject- 
matter,  who  enter  into  an  agreement  to  do 
or  not  to  do,  with  an  apparently  fair  con- 
sideration stipulated,  but  their  agreement  is 
null  and  futile  if  its  object  is  judicially  im- 
moral or  against  the  policy  of  law.  ...  In 
construing  contracts,  courts  hold  entirely 
void  those  that  are  partly  illegal  in  their 


PARTS  OF  THE  SAME  THING.        99 

object.  Legal  stipulations  are  treated  as 
unwritten  when  interwoven  with  others 
designed  to  controvene  the  law,  or  tending 
to  that  end.  An  illegal  consideration  will 
not  be  analyzed  or  dissected  so  as  to  sepa- 
rate good  simples  from  bad,  when  the  com- 
pound is  noxious,  rendering  the  object  of 
the  contract  unlawful." 

Bishop,  on  Contracts,  sec.  467,  speaking 
of  the  rule  of  law  as  applied  by  courts,  says : 

11  Contracts,  illegal  or  of  evil  tendency, 
immoral  or  contrary  to  the  policy  of  the  law, 
or  to  public  policy ;  agreements  between 
parties  to  do  a  thing  prohibited  by  law,  or 
subversive  of  public  interest,  which  the  law 
cherishes ;  forbiddeneitherbythe  common  or 
the  statutory  law,  whether  it  is  malum  in  se, 
or  merely  malum  prohibitum,  indictable  or 
only  subject  to  the  penalty  of  forfeiture ;  or 
however  otherwise  prohibited  by  statute  or 
the  common  law,"  are  void. 

Courts  look  at  the  result  from  the  execu- 
tion of  contracts,  and  if  they  result  in  im- 
morality they  are  void,  though  they  may 
seem  to  be  harmless.  In  the  case  of  Riley 
vs.  Gordon,  122  Mass.,  231,  the  court  says: 

"  A  contract  may  be  illegal,  though  fair 
on  its  face." 


ioo      MORAL  LAW  AND  CIVIL  LAW 

No  gambling  contract  or  contract  having 
an  immoral  consideration  or  contract  to  com- 
pel the  performance  of  an  immoral  act,  nor 
the  payment  of  money  for  an  immoral  act 
performed,  can  be  enforced  in  court.  It  is 
a  maxim  of  the  law,  especially  of  equity, 
that  the  litigant  who  institutes  an  action 
in  court  must  come  with  clean  hands. 


PARTS  OF  THE  SAME  THING.       101 


CHAPTER  VIII. 

THE   LAW   GROWS. 

AS  has  been  said  before,  legal  principles 
are  fixed.  They  are  the  same  now 
as  they  were  when  Caesar  crossed 
the  Rubicon.  But  while  this  is  true,  it 
often  happens  that  the  scales  of  justice  are 
not  held  sufficiently  steady  to  exactly  weigh 
civil  conduct  in  accordance  therewith.  In 
other  words,  it  often  happens  that  courts 
of  justice,  like  merchants,  give  short  weight. 
There  will  never  be  any  change  in  these 
principles.  Courts  make  decisions,  after- 
ward modify,  criticise,  and  overrule  the 
same,  in  their  effort  to  properly  apply  legal 
principles  to  given  questions.  Legislative 
bodies  are  constantly  acting,  not  upon  new 
principles,  but  upon  the  necessity  of  apply- 
ing old  principles  by  new  methods  to  mat- 
ters of  emergency,  and  thereby  the  law 
grows  through  legislation.  It  grows  also  in 
spite  of  legislation,  even  to  the  extent  of 
annulling  and  setting  aside  legislative  acts. 
The  law  grows  with  the  growth  of  general 


io2      MORAL  LAW  AND  CIVIL  LAW 

intelligence  and  public  necessity.  What 
was  the  law  ten  years  ago,  as  interpreted  by 
the  courts  at  that  time,  may  not  be  the  law 
to-day,  though  no  legislation  has  interposed, 
and  no  decision  of  a  court  has  in  fact  been 
made.  It  often  becomes  apparent,  upon 
some  sudden  light  being  thrown  upon  the 
matter  of  conduct  or  business  or  social  en- 
terprise, that  courts  are  constrained  to 
render  decisions  which  attract  wide  atten- 
tion because  of  public  interest  in  the  ques- 
tions involved,  and  the  new  application  of 
old  legal  principles.  This  is  the  field  where 
erudition  and  judicial  minds  exhibit  distin- 
guished qualities,  gain  renown,  and  the 
work  of  courts  is  seen  to  the  best  ad  vantage. 
I  can  present  my  proposition  best  by  way  of 
illustration. 

A  native  was  captured  on  the  coast  of 
Africa,  and  brought  to  Virginia  and  sold  as 
a  slave.  His  name  was  James  Somerset. 
Charles  Stewart  became  his  owner.  In  1 770 
Stewart  took  his  slave  with  him  to  England 
as  a  body  servant.  While  there,  the  slave 
became  influenced  by  the  teaching  and  ed- 
ucation of  persons  who  declared  that  a  slave 
could  not  be  legally  held  in  England.  He 
refused  to  obey  his  master  and  denied  the 


PARTS  OF  THE  SAME  THING.       103 

relationship  of  master  and  slave.  He  was 
seized,  put  in  chains,  placed  on  board  a 
ship  to  be  sent  to  Jamaica.  Before  the  ship 
had  sailed  Thomas  Watkins,  Elizabeth 
Cady,  and  John  Marlow,  three  Quakers, 
made  an  affidavit  in  the  court  of  the  King's 
Bench,  the  highest  court  in  England,  that 
Somerset  was  unlawfully  imprisoned.  A 
writ  of  habeas  corpus  was  issued  against  the 
ship's  captain  and  the  master,  commanding 
them  to  produce  the  body  of  the  slave  in 
court.  These  persons,  in  answer  to  the 
writ,  stated  the  facts,  as  they  claimed  them 
to  be,  of  the  relationship  of  master  and 
slave  and  the  insubordination.  The  legal 
questions  involved  were  argued  by  very  able 
counsel  on  each  side  before  that  high  court, 
and  the  case  was  held  under  consideration 
for  about  a  year  and  a  half.  The  court 
went  so  far  as  to  suggest  to  the  master  that 
it  would  be  better  that  the  case  should  be 
disposed  of  without  pressing  it  to  a  decision, 
and  even  suggested  that  it  would  be  better 
that  this  slave  should  be  released  than  that 
the  property  in  all  the  slaves  in  England 
should  be  jeopardized.  However,  the  mas- 
ter could  not  be  made  to  believe,  even  by 
the  unusual  and  remarkably  suggestive  state- 


104      MORAL  LAW  AND  CIVIL  LAW 

ment  of  the  court,  that  it  could  be  possible 
that  the  court  could  decide  against  him  and 
his  rights  to  property  in  and  control  of  the 
slave.  For  more  than  fifty  years  slavery 
had  been  sanctioned  in  England  by  judicial 
decisions  and  public  recognition.  During 
that  period  Lords  Hard  wick,  Talbott,  and 
York,  at  different  times,  had  decided  that 
slavery  was  a  legal  institution.  For  about 
thirty  years  members  of  the  Quaker  society, 
and  finally  the  body  of  that  society,  had  de- 
clared against  the  institution  of  slavery  as 
inhuman,  immoral,  ungodly,  and  unlawful. 
Other  religious  teachers  and  persons  had 
been  crying  out  against  the  institution.  At 
the  time  when  these  legal  proceedings  were 
had,  public  sentiment  against  the  institu- 
tion, because  of  its  immorality,  had  become 
aroused.  It  was  argued  on  behalf  of  the 
master  that  the  law  upon  this  question  was 
settled  by  the  judicial  decisions  made  at 
different  times  and  of  long  standing,  and 
that  public  acquiescence,  public  necessity, 
and  public  policy  demanded  the  mainte- 
nance of  the  institution.  The  consequences 
of  a  decision  against  the  master  were  por- 
trayed in  the  most  alarming  expressions, 
and  predictions  were  made  of  the  most  dire 


PARTS  OF  THE  SAME  THING.       105 

consequences  to  commerce,  business,  social, 
and  domestic  relations,  if  this  long-settled 
order  of  things  and  legal  status  should  be 
disturbed.  The  influence  of  the  wealthy, 
of  royalty,  great  business  enterprises,  polit- 
ical and  social  interests,  were  arrayed  with 
the  master  and  against  the  slave.  So  strong 
was  the  showing  made  in  these  regards 
that  the  court  seems  to  have  been  seriously 
affected  thereby.  Lord  Mansfield,  chief 
justice  of  that  court,  perhaps  the  most  fear- 
less man  who  ever  sat  on  the  King's  Bench 
in  England,  showed  his  apprehension  when 
he  contemplated  the  consequences  of  a  de- 
cision and,  I  think  the  only  time  in  all  his 
history,  sought  to  avoid  rendering  the  judg- 
ment of  the  court.  In  the  argument  of  the 
counsel  on  behalf  of  the  slave,  one  of  them, 
speaking  of  the  growth  of  public  sentiment 
upon  this  subject,  said,  "  Upon  this  subject 
the  air  of  England  has  been  clearing  since 
the  reign  of  Elizabeth." 

Every  precedent  and  decision  that  could 
be  cited  in  the  case  was  in  favor  of  the 
master.  It  was  a  fact,  entitled  to  very 
great  influence  in  the  case,  that  the  public 
had  sanctioned  the  institution  of  slavery 
and  decisions  in  its  favor  by  acquiescence 


io6      MORAL  LAW  AND  CIVIL  LAW 

for  so  long  a  period.  In  behalf  of  the  slave 
there  was  not  a  precedent.  In  his  interest 
it  was  asked  that  the  settled  order  of  things 
for  this  long  period  should  be  broken  up, 
that  more  than  fifteen  thousand  slaves  in 
England,  those  in  Ireland,  more  than  one 
hundred  and  sixty-six  thousand  in  Jamaica, 
should  be  liberated  by  a  sudden  decision  of 
that  high  court  upon  a  legal  proposition, 
which  had  as  its  sole  foundation  the  claim 
that  the  institution  of  slavery  was  illegal, 
because  it  was  inhuman  and  immoral  in  its 
very  nature  and  results  and  could  not  be 
made  lawful  by  any  decision  of  the  courts 
or  by  any  acquiescence  and  sanction  of  the 
public,  however  numerous  these  decisions 
and  however  long  standing  had  been  the 
public  acquiescence. 

The  attorneys  for  that  black  man  appealed 
to  the  principles  as  presented  in  the  Scrip- 
tures, the  Christian  religion,  and  by  reli- 
gious teachers  and  common  humanity.  There 
is  no  other  case  like  this,  ancient  or  mod- 
ern, before  a  judicial  tribunal  in  which  what 
maybe  termed  the  "cold  law"  alone  was 
clearly  and  fully  presented  on  one  side  and 
only  the  hot  blood  of  moral  principles  pre- 
sented on  the  other.  On  behalf  of  the  mas- 


PARTS  OF  THE  SAME  THING.       107 

ter  counsel  could  read  from  law  books,  could 
appeal  to  the  teaching  of  law  schools,  and 
could  cite  the  precedent  of  history. 

On  behalf  of  the  slave  there  was  no  voice 
from  the  law;  there  were  no  law  books. 
The  court  held  the  case  under  considera- 
tion until  ample  time  was  given  to  consider 
it  from  a  legal  standpoint  and  from  a  moral 
standpoint.  The  year  and  a  half  when  the 
case  was  before  the  court  was  a  period  in 
which  the  great  legal  principles  of  morality 
were  at  work  in  the  government.  The 
business,  social,  and  financial  interests  of 
the  English  government  were  excited  on 
account  of  the  question  as  to  whether  a  case 
in  court  should  be  decided  for  the  master  or 
for  the  liberty  of  the  black  man.  There, 
before  that  court,  was  the  master,  surrounded 
by  such  a  powerful  influence  as  perhaps  no 
litigation  in  that  highest  court  had  ever 
presented.  There  was  the  black  man  with 
his  claims,  supported  only  by  the  disinter- 
ested and  benevolent  zeal  of  Christian  sen- 
timent. The  day  came  when  the  judges  were 
on  the  judgment  seat  and  the  master  and 
the  slave  were  brought  before  them,  and  the 
judgment  was  pronounced.  It  looks  now, 
as  it  looked  then,  a  very  unequal  and  unprom- 


io8       MORAL  LAW  AND  CIVIL  LAW 

ising  struggle  on  behalf  of  the  slave.  It  has 
been  said  of  Lord  Mansfield,  who  delivered 
the  decision  of  the  court  in  this  case,  that  he 
decided  all  cases  with  a  clear  head  but  a  cold 
heart.  In  this  case,  however,  he  seemed  to 
have  maintained  his  reputation  for  a  clear 
head,  but  the  evidence  of  a  warm  heart  is 
also  apparent.  I  quote  this  decision  in  part, 
sufficient  to  present  in  the  most  concise  way 
its  substance :  '  *  The  state  of  slavery  is  of 
such  a  nature  that  it  is  impossible  of  being 
introduced  on  any  reason,  moral  or  political. 
.  .  .  The  setting  fourteen  thousand  or  fifteen 
thousand  men  at  once  free,  loose,  by  a  sol- 
emn opinion  is  much  disagreeable  in  the 
effects  it  threatens.  ...  If  the  parties  will 
have  judgment,  fiat  justitia,  ruat  'ccelum 
(let  justice  be  done,  whatever  be  the  conse- 
quence). Fifty  pounds  a  head  may  not  be  a 
high  price ;  then  a  loss  follows  to  the  pro- 
prietors of  above  seven  hundred  thousand 
pounds,  sterling.  How  would  the  law  stand 
with  respect  to  their  settlement — wages? 
How  many  actions  for  any  slight  coercion 
by  the  masters?  We  cannot  in  any  of  these 
points  direct  the  law.  The  law  must  rule 
us.  In  these  particulars  it  may  be  matter 
of  mighty  consideration  what  provisions 


PARTS  OF  THE  SAME  THING.       109 

are  made  or  set  by  law.  Mr.  Stuart  may 
end  the  question  by  discharging  or  giving 
freedom  to  the  Negro.  I  did  think  at  first 
to  put  the  matter  to  a  more  solemn  way  of 
argument.  But  if  my  brothers  agree  there 
seems  no  occasion.  I  do  not  imagine,  after 
the  point  has  been  discussed  on  both  sides 
so  extremely  well,  any  new  light  could  be 
thrown  on  the  subject.  If  the  parties 
choose  to  refer  it  to  the  Common  Pleas  they 
can  give  them  that  satisfaction  whenever 
they  think  of  it.  An  application  to  Parlia- 
ment, if  the  merchants  think  the  question 
of  great  commercial  concern,  is  the  best 
and  perhaps  the  only  method  of  settling  the 
point  for  the  future.  .  .  .  Whatever  incon- 
veniences therefore  may  follow  from  a  de- 
cision, I  cannot  say  this  case  is  allowed  or 
approved  by  the  law  of  England ;  and  there- 
fore the  black  man  must  be  discharged" 
(Loft's  Report.  Second  Case). 

Believers  in  the  Scriptures  accept  the  ac- 
count of  divine  deliverance  of  Joseph  from 
slavery  and  prison  and  promotion  and  ruler- 
ship  in  Egypt,  and  the  deliverance  of  the 
three  Hebrews  from  the  burning  fire,  and 
Daniel  from  the  lions'  den.  In  each  of  these 

cases  special  divine  interposition  is  reported. 
8 


no      MORAL  LAW  AND  CIVIL  LAW 

In  the  case  of  Charles  Somerset,  the  slave, 
the  decision  was  not  in  accordance  with  the 
letter  or  spirit  of  the  schools  of  law,  law 
books,  decided  cases,  or  intellectual  process 
of  that  day.  A  remarkable  overpowering 
influence  from  some  source  came  upon  the 
mind  of  the  court — a  court  never  surpassed 
in  the  world's  history  for  intelligence.  Ad- 
vancing civilization  threw  a  greater  light 
upon  that  question,  and  thereby  revealed 
what  courts  had  never  been  able  to  see 
before. 

We  are  not  driven  to  the  necessity  of 
claiming  special  divine  interposition  in  be- 
half of  the  slave  in  this  case.  The  great 
principle  of  public  morality  is  strong  enough, 
has  in  it  such  overpowering  influence  as  that 
it  is  sufficient  for  any  great  emergency  like 
this,  when  it  has  had  due  course.  Doc- 
trines recognized  and  declared  to  be  the 
law  in  that  case  are  identical  with  the  doc- 
trine taught  by  Christian  teachers,  by  the 
Quaker  Church,  William  Wilberforce,  John 
Wesley,  and  many  other  great  leaders,  and 
were  in  accordance  with  the  prayers  and 
urgency  of  devout  people,  though  they 
stood  in  conflict  with  what  were  recognized 
as  legal  precedents.  Where  did  these  peo- 


PARTS  OF  THE  SAME  THING.       in 

pie  get  these  doctrines  which  they  had  suc- 
ceeded in  enforcing  in  such  a  wonderful 
degree  and  with  such  amazing  success?  I 
need  go  no  further  in  my  claim  in  this  case 
than  that  the  secret  of  this  most  renowned 
decision,  the  consequence  of  which  will 
never  end,  was  simply  the  application  of 
the  principles  of  sound  morality  to  a  ques- 
tion in  civil  courts.  The  court,  in  this  de- 
cision, made  the  doctrines  as  taught  by 
these  religious  teachers  the  law  of  the  land, 
as  against  the  doctrines  as  taught  by  the 
schools  of  law,  the  law  books,  precedents, 
and  decisions.  That  decision  set  free  all 
the  slaves  within  the  jurisdiction  of  that 
court,  and  a  Christian  civilization  so  ad- 
justed all  the  affairs,  public  and  private, 
that  the  consequences  never  made  a  jar. 
One  hundred  and  twenty-five  years  have 
gone  by  since  that  decision  was  rendered. 
The  consequences  have  flown  like  a  bene- 
diction in  the  pathway  of  mankind  during 
all  this  period.  That  decision,  as  a  prec- 
edent, has  gone  like  a  divine  influence  into 
the  affairs  of  men.  The  judges  who  ren- 
dered it  have  gone  to  their  reward,  and  in 
the  great  day  of  final  judgment  need  not 
fear  condemnation  for  that  act. 


ii2      MORAL  LAW  AND  CIVIL  LAW 

In  1807  the  Indiana  Territorial  Legisla- 
ture chartered  the  Vincennes  University,  at 
Vincennes,  Indiana.     In  that  charter  there 
was  a  section  as  follows :  *  *  And  be  it  further 
enacted,  That  for  the  support  of  the  aforesaid 
institution,  and  for  the  purpose  of  procuring 
a  library  and  the  necessary  philosophical 
and  experimental  apparatus,  agreeably  to 
the  eighth  section  of  this  law,  there  shall  be 
raised  a  sum  not  exceeding  twenty  thou- 
sand dollars,  by  a  lottery,  to  be  carried  into 
operation  as  speedily  as  may  be  after  the 
passage  of  this  act,  and   that  the   trustees 
of  the  said  university  shall  appoint  five  dis- 
creet persons,  either  of  their  body  or  other 
persons,  to  be  managers  of  the  said  lottery, 
each  of  whom  shall  give  security,  to  be  ap- 
proved of  by  said  trustees,  in  such  sum  as 
they  shall  direct,  conditioned  for  the  faith- 
ful discharge  of  the  duty  required  of  said 
managers,  and  the  said  managers  shall  have 
power  to  adopt  such  schemes  as  they  may 
deem  proper  to  sell  the  said  tickets  and  lo 
superintend  the  drawing  of  the  same  and 
the  payment  of  the  prizes,"  etc.     The  pres- 
ent  Constitution    of  Indiana,     adopted    in 
1851,    prohibits   lotteries.      The    Supreme 
Court  of  Indiana,  in    1879,  in  tne  case  of 


PARTS  OF  THE  SAME  THING.       113 

Kellum  vs.  The  State,  66  Indiana,  588,  held 
that  under  the  charter  to  the  Vincennes 
University  the  lottery  provision  had  be- 
come a  vested  right  and  could  not  be  dis- 
turbed even  by  a  constitutional  provision. 
This  decision  attracted  wide  attention  in 
Indiana,  and  was  the  cause  of  much  public 
discussion.  The  people  of  Indiana  had  be- 
come much  aroused  upon  the  question  of 
the  morality  of  the  lottery  business. 
Churches  were  declaring  in  the  form  of 
resolutions  and  other  action  against  the 
business.  The  better  class  of  people  were 
antagonizing  it.  There  was  a  great  and 
rapid  growth  of  public  sentiment  upon  this 
question.  In  1883,  in  the  case  of  the  State 
vs.  Woodard,  89  Indiana  Reports,  no,  the 
question  of  the  legality  of  the  lottery  pro- 
visions in  the  Vincennes  charter,  the  iden- 
tical question  that  had  been  before  the 
court  in  1879  was  again  presented,  and  the 
court  was  again  called  upon  to  consider  the 
question.  No  act  of  the  Legislature  had 
intervened  since  the  former  decision.  In 
the  interval  between  the  former  decision  and 
the  presentation  of  the  question  again  the 
decision  of  the  Supreme  Court  of  the  United 
States,  in  the  case  of  Stone  vs.  Mississippi, 


ii4      MORAL  LAW  AND  CIVIL  LAW 

101  U.  S.  Reports,  814,  had  been  ren- 
dered, in  which  that  court  held  that  the  lot- 
tery business  was  an  immoral  business  and 
could  have  no  vested  rights.  When  the  Su- 
preme Court  of  Indiana  looked  a  second  time 
at  the  question  they  saw  in  it  the  principle 
involved,  what  the  court  did  not  see  in  the 
former  decision,  not  because  there  was  any 
new  principle  involved,  but  because  by  the 
reason  of  the  growth  of  public  sentiment 
and  legal  knowledge  the  court  was  enabled 
to  see  what  it  was  unable  to  see  before  in 
the  same  question.  In  the  latter  decision 
the  court  disregarded  all  the  precedents 
which  it  had  cited,  all  the  argument  which 
it  had  made,  all  its  own  reasoning  in  the 
former  case,  overruled  its  former  decision, 
and  decided  that  the  lottery  provision  in  the 
Vincennes  University  was  void,  and  that  the 
lottery  business  could  not  be  conducted  by 
the  trustees  or  anyone  else  for  that  institu- 
tion, because  of  the  immorality  of  the  busi- 
ness itself. 

At  the  close  of  the  opinion  of  the  court  in 
this  last  case  in  Indiana,  which  was  written 
by  Judge  Wordon,  the  reporter  adds  the 
following  note :  ' '  This  was  the  last  opinion 
written  by  Hon.  James  B.  Wordon."  Judge 


PARTS  OF  THE  SAME  THING.        1 1 5 

Wordon  was  one  of  the  judges  who  had 
concurred  in  the  opinion  of  that  court  four 
years  before  expressing  exactly  the  con- 
trary opinion. 

Slavery  had  existed  in  the  United  States, 
had  been  recognized  by  the  courts,  includ- 
ing the  Supreme  Court  of  the  United  States, 
and  by  the  people  of  the  United  States,  as 
a  lawful  institution  for  more  than  two  hun- 
dred and  fifty  years.  It  was  so  firmly  es- 
tablished and  so  influential  that  men  in 
public  positions  hazarded  their  personal 
safety  by  even  suggesting  that  it  ought  to  be 
legally  interfered  with.  There  was  no  pros- 
pect in  the  least  of  taking  any  step  whatever 
to  disturb  it  as  an  institution.  The  Supreme 
Court  of  the  United  States  even  had  be- 
come so  dominated  and  subjugated  by  the 
influences  of  that  institution  that  for  some 
time  it  disregarded  every  settled  and  fixed 
fundamental  principle  of  law  and  morality, 
and  in  the  face  of  the  great  precedent  in 
the  case  of  Somerset  vs.  Stewart,  to  which 
I  have  referred,  decided  by  the  King's 
Bench  in  England,  by  which  slavery  had 
been  abolished,  and  decided  that  the  black 
man  had  no  rights  that  the  white  man 
was  bound  to  respect.  The  decision  in  the 


ii6     MORAL  LAW  AND  CIVIL  LAW 

English  case  fell  like  a  benediction,  and  has 
gone  into  every  civilized  government  with 
its  great  influence,  and  shall  shine  brighter 
and  brighter  forever. 

The  case  of  Dred  Scott  vs.  John  F.  A. 
Stanford,  decided  in  1857,  more  than  eighty 
years  after  the  English  case,  by  the  Su- 
preme Court  of  the  United  States,  going  to 
the  extreme  against  the  rights  of  the  colored 
man  and  in  favor  of  the  inhuman  and  im- 
moral institution  of  slavery,  aroused  the 
antagonism  and  warlike  spirit  of  a  large 
class  of  people,  and  was  one  of  the  greatest 
factors  in  producing  civil  war  in  the  United 
States. 

Notwithstanding  this  decision  of  our  own 
highest  court,  notwithstanding  the  fact  that 
no  legislation  interfering  with  the  existence 
of  slavery  was  possible  in  the  United  States, 
notwithstanding  the  claim,  and  general  ac- 
quiescence therein,  that  the  government  of 
the  United  States  could  not  interfere  with 
the  institution  of  slavery  in  the  States  where 
it  existed  by  legislation  or  otherwise,  yet 
there  came  a  day  when  the  education  of  the 
people  of  the  nation,  under  the  excitement 
of  those  stirring  days,  had  so  rapidly  ad- 
vanced that  under  the  law  of  public  neces- 


PARTS  OF  THE  SAME  THING.       117 

sity  Abraham  Lincoln,  by  one  stroke,  as 
chief  executive  of  the  nation,  could  and  did 
destroy  that  institution,  as  a  war  necessity, 
for  the  preservation  of  the  government. 
The  growth  in  the  comprehension  of  the 
law  concerning  that  institution  from  1861 
to  1863  was  greater  than  the  growth  of  edu- 
cation upon  that  subject  for  the  two  hun- 
dred and  fifty  years  previous. 

Ten  years  after  the  close  of  the  civil  war 
one  of  the  most  distinguished  writers  and 
statesmen  in  the  nation  prepared  and  caused 
to  be  published  an  article,  in  which  he  as- 
serted that  slavery,  in  fact,  had  never  been 
abolished  in  the  United  States,  because 
Abraham  Lincoln,  as  president,  had  no 
authority  for  issuing  the  Emancipation 
Proclamation,  and  that  the  proclamation 
was  void.  The  article,  however,  only  served 
to  remind  the  people  of  what  had  once  been 
the  public  impression,  and  how  great  had 
been  the  growth  of  education  upon  that 
subject,  and  caused  a  smile  at  the  temerity 
of  the  writer. 

A  case  was  recently  presented  to  the  Su- 
preme Court  of  Indiana  in  which  a  widow 
had  brought  suit  against  a  saloon  keeper 
and  his  landlord  for  damages  done  to  the 


ii8      MORAL  LAW  AND  CIVIL  LAW 

widow's  property,  and  the  enjoyment  of  her 
home,  by  the  establishment  and  maintenance 
of  a  saloon  adjoining  her  residence.  The 
defendants  pleaded  a  license  under  the  law 
of  the  State  authorizing  the  saloon  business. 
The  license  law  of  the  State  of  Indiana  made 
no  exception  as  to  locality,  and  the  saloon 
keeper  flaunted  his  license  in  the  face  of  the 
widow  with  the  utmost  confidence  that  she 
was  powerless  and  without  relief  under  the 
law.  This  particular  question  had  never 
before  been  presented  to  any  court.  Our 
Supreme  Court,  in  its  first  decision  upon  that 
question,  held  that  the  widow  was  not  enti- 
tled to  any  relief.  A  petition  for  rehearing 
was  presented,  considered,  and  sustained. 
The  court  having  thus  opened  the  case  for  re- 
consideration gave  to  the  question  presented 
remarkable  and  very  unusual  attention,  and 
finally  decided ;  first,  that  the  widow  had  a 
right  of  action ;  second,  that  the  saloon 
keeper  and  also  his  landlord,  who  had  leased 
the  property  for  saloon  purposes,  were  each 
liable  for  damages ;  third,  that  the  license 
was  no  protection  to  the  business  in  that  lo- 
cality; fourth,  that  an  orderly  saloon  in  an 
orderly  residence  neighborhood  is,  per  se,  a 
nuisance.  In  reaching  these  conclusions  the 


PARTS  OF  THE  SAME  THING.       119 

court  was  compelled  to  disregard  and  annul 
largely  the  letter  of  the  license  law ;  to  de- 
clare that  no  statute  could  authorize  by  its 
provisions  or  give  its  protection  to  any  act 
or  business  such  as  the  business  in  the  case 
presented ;  that  the  saloon  business  is  offen- 
sive to  good  morals  and  sound  sentiment. 
This  decision  is  without  precedent  upon  the 
issue  presented.  The  decision  is  a  depar- 
ture from  the  view  of  the  law  and  of  the 
business  as  heretofore  taken.  This  decision 
most  forcibly  illustrates  the  growth  in  the 
view  of  the  law  upon  this  subject.  The 
Legislature  of  Indiana  can  grant  no  relief 
from  the  effect  and  consequences  of  this  de- 
cision, for  the  reason  that  rights  of  property 
and  enjoyment  of  the  same  as  recognized  in 
the  decision  cannot  be  interfered  with  with- 
out compensation.  See  Haggart  et  al  vs. 
Stehlin  et  al,  137  Ind.,  43. 

We  have  just  recently  had  fine  exhibitions 
of  the  growth  of  the  law  exhibited  in  regard 
to  prize  fighting. 

In  January,  1894,  a  prize  fight  between 
James  J.  Corbett  and  Charles  Mitchell  was 
duly  advertised  to  be  given  in  the  State 
of  Florida.  The  governor  called  out  the 
militia  to  prevent  the  immoral  and  demoral- 


i2o      MORAL  LAW  AND  CIVIL  LAW 

izing  exhibition.  A  court  of  justice,  upon 
application,  issued  an  injunction  against 
the  use  of  the  militia  for  the  purpose  for 
which  it  had  been  called,  declaring  that 
there  was  no  law  in  Florida  against  prize 
fighting,  and  thereby  prevented  all  inter- 
ference on  the  part  of  the  State  troops  and 
the  police  authorities.  The  Governor  of 
Texas,  on  being  informed  by  his  attorney 
general  in  the  month  of  October,  1895,  that 
there  was  no  law  in  Texas  to  prevent  prize 
fighting,  assembled  the  Legislature  of  the 
State  to  meet  the  emergency,  and  within 
three  hours  after  that  body  was  organized 
a  law  had  been  passed  and  signed  by  the 
governor  forbidding  such  brutal  exhibi- 
tions. Within  less  than  one  month  after 
this  enactment  in  Texas,  in  response  to  the 
public  demand  of  advanced  civilization, 
when  the  same  exhibition  was  undertaken 
to  be  given  in  the  State  of  Arkansas,  the 
chief  executive,  his  attorney  general,  and 
the  court  decided  upon,  and  put  in  execu- 
tion, judicial  process,  and  prevented  the 
same,  not  upon  an  act  of  the  Legislature, 
but  upon  a  construction  of  the  law  as  it  had 
existed  ever  since  the  organization  of  the 
State,  and  provisions  almost  identical  with 


PARTS  OF  THE  SAME  THING.       121 

those  that  had  had  long  existence  in  the 
States  of  Florida  and  Texas,  the  provisions 
of  which  were  ample  to  have  met  the  emer- 
gency in  either  of  these  States,  if  properly 
construed,  to  prevent  a  prize  fight. 

The  force  of  public  opposition  has  thrown 
such  a  light  upon  the  real  character 
and  demoralizing  influences  of  prize  fight- 
ing that  the  law,  as  it  is,  has  grown  to  meet 
the  emergency,  until  prize  fighting  is  clearly 
unlawful  in  every  State  in  the  Union.  Na- 
tional and  State  Constitutions  grow  with  the 
experience  and  enlightenment  of  men.  The 
word  "morality"  itself  is  a  thing  of  growth. 
This  word  means  much  more  than  it  once 
did,  and  some  day  will  mean  a  vast  deal 
more  to  us  than  it  does  now.  Growth  in  the 
comprehension  of  no  word,  perhaps,  has 
broadened  more  in  recent  years  than  the 
word  "cruelty."  Its  scope  now  covers 
many  subjects  and  a  wide  field.  There  was 
a  time  when  a  man  could  lawfully  whip  his 
wife  in  moderation,  beat  his  children  to  the 
limits  of  brutality,  and  kill  his  slave  or 
his  animals  with  impunity,  without  being 
charged  with  cruelty.  We  have  now  reached 
the  point  in  our  comprehension  of  this  word 
where  it  is  dangerous  for  a  man  to  kick  his 


122      MORAL  LAW  AND  CIVIL  LAW 

own  dog,  fail  to  feed  his  own  horse,  or  even 
threaten  to  strike  his  own  wife.  There  was 
a  time  when  the  word  "cruelty"  had  its  own 
particular  and  narrow  meaning.  Now  it  is 
merely  one  of  the  branches  of  immorality. 
A  cruel  man  is  a  bad  man,  and  a  bad  man 
cannot  be  a  moral  man. 

I  have  said  that  the  law  grows.  I  have 
made  this  declaration  in  this  form  for  con- 
venience and  for  the  purpose  of  making 
myself  more  easily  understood.  Strictly 
speaking,  the  law  does  not  grow,  but  the 
comprehension  of  legal  principles  does 
grow.  Principles  as  set  forth  in  the  Ten 
Commandments  will  be  no  greater  in  the 
day  of  final  judgment  than  when  they  were 
written  down  in  the  presence  of  Moses  on 
tables  of  stone,  but  every  generation  will 
learn  something  new  concerning  these  prin- 
ciples and  will  see  in  them  what  has  not 
been  seen  before.  The  history  and  growth 
in  the  comprehension  and  meaning  of  the 
word  "morality"  is  a  most  fascinating  study. 
Nothing  short  of  the  historic  evolution  of 
morality  for  two  thousand  years  can  furnish 
full  comprehension  of  its  meaning.  The 
volumes  that  have  been  written  upon  this 
subject  would  make  such  a  weight  as  few 


PARTS  OF  THE  SAME  THING.       123 

men  could  carry  at  one  time.  The  word 
"morality,"  as  used  in  the  Constitution  of 
Indiana  and  the  Constitutions  of  other  States 
and  in  the  judicial  decisions  of  other  States, 
must  be  held  by  faithful  judges  to  contem- 
plate all  that  ever  can  be  found  at  any  time  by 
the  most  profound  research  under  the  most 
brilliant  light  within  its  boundaries.  Civil 
law  is  not  founded  upon  any  military,  mar- 
tial, business,  or  social  ideas.  The  abiding 
and  fundamental  principle  in  civil  law  is 
morality,  with  its  honesty,  fair  dealing,  and 
justice  to  all  men.  The  historic  method  of 
explanation  of  legal  principles  which  is  the 
method  accepted  by  courts  that  are  well  in- 
formed on  legal  principles  has  narrowed 
and  changed  the  meaning  of  many  words, 
and  even  dropped  some  words  and  whole 
expressions  out  of  definitions,  but  this 
method  has,  for  three  thousand  years, 
steadily,  but  never  as  rapidly  as  within 
recent  years,  developed,  enlarged,  and 
strengthened  the  word  "morality."  I  ven- 
ture to  prophesy  for  the  future  that  the 
word  "morality"  will  respond  to  the  in- 
quiries of  faithful  courts  by  the  revelation 
of  many  beautiful  and  most  important  ideas 
heretofore  and  now  unseen.  Writers  on  all 


124      MORAL  LAW  AND  CIVIL  LAW 

branches  of  the  law  well  know  that  the  indi- 
vidual statements  of  legal  propositions  have 
little  weight.  Therefore  it  is  not  only  the 
most  common  custom,  but  an  absolute  neces- 
sity, that  any  writer  should  fortify  his  state- 
ments by  quotations  from  good  authority.  I 
have  heretofore  quoted  from  Austin's  works 
on  jurisprudence,  because  he  is  perhaps  the 
bestauthority  on  historic  developmentof  legal 
principles,  and  his  high  authority  is  univer- 
sally recognized  by  the  legal  profession. 

I  feel  that  I  can  do  no  better  in  closing 
this  chapter  than  to  quote  at  some  length 
from  this  high  authority.  In  doing  so  let 
me  call  special  attention  to  the  fact  that  the 
author,  in  what  I  shall  quote,  is  not  merely 
lecturing  upon  the  subject,  but  is  consider- 
ing, from  a  legal  standpoint,  the  subject  of 
"morality."  He  uses  the  words  "  ethics" 
and  "  ethical,"  meaning  by  these  words  ex- 
actly what  was  then  and  is  now  meant  by 
the  word  "  morality."  This  is  shown  in  his 
work,  and  also  in  quotations  made  from  him 
in  another  chapter  of  this  work. 

In  Vol.  I,  pp.  137-138,  this  author  says: 
' '  If  the  elements  of  ethical  science  were 
widely  diffused,  the  science  would  advance 
with  proportionate  rapidity. 


PARTS  OF  THE  SAME  THING.       125 

14  If  the  minds  of  the  many  were  informed 
and  invigorated,  their  coarse  and  sordid 
pleasures  and  their  stupid  indifference 
about  knowledge  would  be  supplanted  by 
refined  amusements  and  by  liberal  curiosity ; 
a  numerous  body  of  recruits  from  the  lower 
of  the  middle  classes,  and  even  from  the 
higher  classes  of  the  working  people,  would 
thicken  the  slender  ranks  of  the  reading  and 
reflecting  public,  the  public  which  occupies 
its  leisure  with  letters,  science,  and  philoso- 
phy ;  whose  opinion  determines  the  success 
or  failure  of  books,  and  whose  notice  and 
favor  are  naturally  courted  by  the  writers. 

' '  And  until  that  public  shall  be  much  ex- 
tended, shall  embrace  a  considerable  portion 
of  the  middle  and  working  people,  the  sci- 
ence of  ethics,  with  all  the  various  sciences 
which  are  nearly  related  to  ethics,  will  ad- 
vance slowly. 

"  It  was  the  opinion  of  Mr.  Locke,  and  I 
fully  concur  in  the  opinion,  that  there  is  no 
peculiar  uncertainty  in  the  subject  or  matter 
of  these  sciences ;  that  the  great  and  extraor- 
dinary difficulties  by  which  their  advance- 
ment is  impeded  are  intrinsic,  are  opposed  by 
sinister  interests  or  by  prejudices  which  are 
the  offspring  of  such  interests ;  that  if  they 

9 


126      MORAL  LAW  AND  CIVIL  LAW 

who  seek  or  affect  to  seek  the  truth  would 
pursue  it  with  obstinate  application  and  with 
due  *  indifferency  '  they  might  frequently  hit 
upon  the  object  which  they  profess  to  look 
for.  Now,  few  of  them  will  pursue  it  with 
this  requisite  '  indifferency '  or  impartiality 
so  long  as  the  bulk  of  the  public  which  de- 
termines the  fate  of  their  labors  shall  con- 
tinue to  be  formed  from  the  classes  which 
are  elevated  by  rank  or  opulence,  and  from 
the  peculiar  professions  or  callings  which 
are  distinguished  by  the  name  of  '  liberal.' 
In  the  science  of  ethics,  and  in  all  the  various 
sciences  which  are  nearly  related  to  ethics, 
your  only  sure  guide  is  general  utility.  If 
thinkers  and  writers  would  stick  to  it 
honestly  and  closely  they  would  frequently 
enrich  these  sciences  with  additional  truths 
or  would  do  them  good  service  by  weeding 
them  of  nonsense  and  error.  But  since  the 
peculiar  interests  of  particular  and  narrow 
classes  are  always  somewhat  adverse  to  the 
interests  of  the  great  majority,  it  is  hardly 
expected  of  writers  whose  reputation  de- 
pends upon  such  classes  that  they  should 
fearlessly  tread  the  path  which  is  indicated 
by  the  general  well-being. 

* '  The  indifferency  in  the  pursuit  of  truth 


PARTS  OF  THE  SAME  THING.       127 

which  is  so  earnestly  inculcated  by  Mr. 
Locke  is  hardly  to  be  expected  of  writers 
who  occupy  so  base  a  position;  knowing 
that  a  fraction  of  the  community  can  make 
or  mar  their  reputation,  they  unconsciously 
or  purposely  accommodate  their  conclusions 
to  the  prejudices  of  that  narrower  public, 
or,  to  borrow  the  expressive  language  of  the 
greatest  and  best  of  philosophers,  they  be- 
gin with  espousing  the  ivell-endoived  opinions 
in  fashion,  and  then  seek  arguments  to 
show  their  beauty  or  to  varnish  or  disguise 
their  deformity." 

Also  in  same  volume,  at  pages  141  to  143  : 
"This  patience  in  investigation,  this  dis- 
tinctness and  accuracy  of  method,  this  free- 
dom and  '  indifferency '  in  the  pursuit  of  the 
useful  and  the  true,  would  thoroughly  dis- 
pel the  obscurity  by  which  the  science  is 
clouded,  and  would  clear  it  of  most  of  its 
uncertainties.  The  wish,  the  hope,  the  pre- 
diction of  Mr.  Locke  would  in  time  be  ac- 
complished, and  *  ethics '  would  rank  with 
the  sciences  which  are  capable  of  demonstra- 
tion. The  adepts  in  ethical  as  well  as  in 
mathematical  science  would  certainly  agree 
in  their  results,  and  as  the  jar  of  their  con- 
clusions gradually  subsided  a  body  of  doc- 


128      MORAL  LAW  AND  CIVIL  LAW 

trine  and  authority  to  which  the  multitude 
might  trust  would  emerge  from  the  exist- 
ing chaos.  The  direct  examination  of  the 
multitude  would  only  extend  to  the  ele- 
ments and  to  the  easier  though  more  mo- 
mentous of  the  derivative  practical  truths. 
But  none  of  their  opinions  would  be  adopted 
blindly,  nor  would  any  of  their  opinions  be 
obnoxious  to  groundless  and  capricious 
change.  Though  most  or  many  of  their 
opinions  would  still  be  taken  from  authority, 
the  authority  to  which  they  would  trust 
might  satisfy  the  most  scrupulous  reason. 
In  the  unanimous  or  general  consent  of  numerous 
and  impartial  inquirers  they  would  find  that 
mark  of  trustworthiness  which  justifies  re- 
liance on  authority  wherever  we  are  de- 
barred from  the  opportunity  of  examining 
the  evidence  for  ourselves. 

"  With  regard,  then,  to  the  perplexing 
difficulty  which  I  am  trying  to  solve  or  ex- 
tenuate the  case  stands  thus : 

< '  If  utility  be  the  proximate  test  of  posi- 
tive law  and  morality,  it  is  simply  im- 
possible that  positive  law  and  morality 
should  be  free  from  defects  and  errors. 
Or  (adopting  a  different  though  exactly 
equivalent  expression),  if  the  principle  of 


PARTS  OF  THE  SAME  THING.       129 

general  utility  be  our  guide  to  the  divine 
commands,  it  is  impossible  that  the  rules  of 
conduct  actually  obtaining  among  mankind 
should  accord  completely  and  correctly  with 
the  laws  established  by  the  Deity.  The  in- 
dex to  his  will  is  imperfect  and  uncertain. 
His  laws  are  signified  obscurely  to  those 
upon  whom  they  are  binding,  and  are  sub- 
ject to  inevitable  and  involuntary  miscon- 
struction. 

' '  For,  first,  positive  law  and  morality, 
fashioned  on  the  principle  of  utility,  are 
gotten  by  observation  and  induction  from 
the  tendencies  of  human  actions ;  from  what 
can  be  known  or  conjectured,  by  means  of 
observation  and  induction,  of  their  uniform 
or  customary  effects  on  the  general  hap- 
piness or  good.  Consequently  till  these 
actions  shall  be  marked  and  classed  with 
perfect  completeness,  and  their  effects  ob- 
served and  ascertained  with  similar  com- 
pleteness, positive  law  and  morality,  fash- 
ioned on  the  principle  of  utility,  must  be 
more  or  less  defective  and  more  or  less 
erroneous.  And  these  actions  being  in- 
finitely various  and  their  effect  being  in- 
finitely diversified,  the  work  of  classing 
them  completely  and  of  collecting  their 


130      MORAL  LAW  AND  CIVIL  LAW 

effects  completely  transcends  the  limited 
faculties  of  created  and  finite  beings.  As 
the  experience  of  mankind  enlarges,  as 
they  observe  more  extensively  and  accu- 
rately and  reason  more  clearly  and  pre- 
cisely, they  may  gradually  mend  the  defects 
of  their  legal  and  moral  rules,  and  may 
gradually  clear  their  rules  from  the  errors 
and  nonsense  of  their  predecessors.  But 
though  they  may  constantly  approach,  they 
certainly  will  never  attain  to  a  faultless 
system  of  ethics,  to  a  system  perfectly  in 
unison  with  the  dictates  of  general  utility, 
and  therefore  perfectly  in  unison  with  the 
benevolent  wishes  of  the  Deity. 

* '  And,  secondly,  if  utility  be  the  proxi- 
mate test  of  positive  law  and  morality,  the 
defects  and  errors  of  popular  or  vulgar 
ethics  will  scarcely  admit  of  a  remedy.  For 
if  ethical  truth  be  a  matter  of  science,  and 
not  of  immediate  consciousness,  most  of  the 
ethical  maxims  which  govern  the  sentiments 
of  the  multitude  must  be  taken  without 
examination  from  human  authority.  And 
where  is  the  human  authority  upon  which 
they  can  safely  rely  ?  Where  is  the  human 
authority  bearing  such  marks  of  trust- 
worthiness that  the  ignorant  may  hang 


PARTS  OF  THE  SAME  THING.       131 

their  faith  upon  it  with  reasonable  assur- 
ance ?  Reviewing  the  various  ages  and  the 
various  nations  of  the  world,  reviewing  the 
various  sects  which  have  divided  the  opin- 
ions of  mankind,  we  find  conflicting  maxims 
taught  with  equal  confidence  and  received 
with  equal  docility.  We  find  the  guides  of 
the  multitude  moved  by  sinister  interests 
or  by  prejudices  which  are  the  offsprings  of 
such  interests.  We  find  them  stifling  in- 
quiry, according  to  the  measure  of  their 
means;  upholding  with  fire  and  sword  or 
with  sophistry,  declamation,  and  calumny 
the  theological  and  ethical  dogmas  which 
they  impose  upon  their  prostrate  disciples. 
Such  is  the  difficulty.  The  only  solution 
of  which  this  difficulty  seems  to  admit  is 
suggested  by  the  remarks  which  I  have 
already  submitted  to  your  attention,  and 
which  I  will  now  repeat  in  an  inverted  and 
compendious  form. 

' '  In  the  first  place,  the  diffusion  of  ethical 
science  among  the  great  bulk  of  mankind 
will  gradually  remove  the  obstacles  which 
prevent  or  retard  its  advancement.  The 
field  of  human  conduct  being  infinite  or 
immense,  it  is  impossible  that  human  under- 
standing should  embrace  and  explore  it  com- 


132       MORAL  LAW  AND  CIVIL  LAW 

pletely.  Butby  the  general  diffusion  of  knowl- 
edge among  the  great  bulk  of  mankind,  by 
the  impulse  and  the  direction  which  the  dif- 
fusion will  give  to  inquiry,  many  of  the  de- 
fects and  errors  in  existing  law  and  immo- 
rality will  in  time  be  supplied  and  corrected. 

'  *  Secondly,  though  the  many  must  trust  to 
authority  for  a  number  of  subordinate  truths, 
they  are, competent  to  examine  the  elements 
which  are  the  groundwork  of  the  science  of 
ethics,  and  to  infer  the  more  momentous  of 
the  derivative  practical  consequences. 

1 '  And,  thirdly,  as  the  science  of  ethics  ad- 
vances and  is  cleared  of  obscurity  and  uncer- 
tainties, they  who  are  debarred  of  opportuni- 
ties of  examining  the  science  extensively  will 
find  an  authority  whereon  they  may  ration- 
ally rely  in  the  unanimous  or  general  agree- 
ment of  searching  and  impartial  inquiries." 

Again,  on  pages  177  to  180: 

"The  science  of  ethics  (or,  in  the  lan- 
guage of  Mr.  Bentham,  the  science  of  deon- 
tology) may  be  defined  in  the  following 
manner:  It  affects  to  determine  the  test 
of  positive  law  and  morality,  or  it  affects  to 
determine  the  principles  whereon  they  must 
be  fashioned  in  order  that  they  may  merit 
approbation.  In  other  words,  it  affects  to 


PARTS  OF  THE  SAME  THING.       133 

expound  them  as  they  should  be;  or  it 
affects  to  expound  them  as  they  ought  to 
be ;  or  it  affects  to  expound  them  as  they 
would  be  if  they  were  good  or  worthy  of 
praise ;  or  it  affects  to  expound  them  as  they 
would  be  if  they  conformed  to  an  assumed 
measure.  The  science  of  ethics  (or  simply 
and  briefly  ethics)  consists  of  two  depart- 
ments, one  relating  especially  to  positive 
law,  the  other  relating  to  positive  morality. 
The  department  which  relates  specially  to 
positive  law  is  commonly  styled  the  science  of 
legislation,  or,  simply  and  briefly,  legislation. 
The  department  which  relates  specially  to 
positive  morality  is  commonly  styled  the  sci- 
ence of  morals,  or,  simply  and  briefly,  morals. 
' '  The  foregoing  attempt  to  define  the 
science  of  ethics  naturally  leads  me  to  offer 
the  following  explanatory  remark.  When 
we  say  that  a  human  law  is  good  or  bad,  or 
is  worthy  of  praise  or  blame,  or  is  what  it 
should  be,  or  is  what  it  ought  to  be,  or  what 
it  ought  not  to  be,  we  mean  (unless  we 
intimate  our  mere  liking  or  aversion)  this : 
That  the  law  agrees  with  or  differs  from  a 
something  to  which  we  tacitly  refer  it  as  a 
measure  or  test.  For  example,  according 
to  either  of  the  hypotheses  which  I  stated 


i34      MORAL  LAW  AND  CIVIL  LAW 

in  preceding  lectures,  a  human  law  is  good 
or  bad  as  it  agrees  or  does  not  agree  with 
the  law  of  God ;  that  is  to  say,  with  the  law 
of  God  as  indicated  by  the  principle  of  utility 
or  with  the  law  of  God  as  indicated  by  the 
moral  sense.  To  the  adherent  of  the  theory 
of  utility  a  human  law  is  good  if  it  be 
generally  useful,  and  a  human  law  is  bad  if 
it  be  generally  pernicious.  For,  in  his 
opinion,  it  is  consonant  or  not  with  the  law 
of  God  inasmuch  as  it  is  consonant  or  not 
with  the  principles  of  general  utility.  To 
the  adherent  of  the  hypothesis  of  a  moral 
sense  a  human  law  is  good  if  he  likes  it,  he 
knows  not  why ;  and  a  human  law  is  bad  if 
he  hates  it,  he  knows  not  wherefore.  For 
in  his  opinion  his  inexplicable  feeling  of 
liking  or  aversion  shows  that  the  human  law 
pleases  or  offends  the  Deity. 

'  *  To  the  atheist  a  human  law  is  good  if 
it  be  generally  useful,  and  a  human  law  is 
bad  if  it  be  generally  pernicious.  For  the 
principle  of  general  utility  would  serve  as  a 
measure  or  test,  although  it  were  not  an  in- 
dex to  an  ulterior  measure  or  test.  But  if 
he  call  the  law  a  good  one  without  believing 
it  useful,  or  if  he  call  the  law  a  bad  one 
without  believing  it  pernicious,  the  atheist 


PARTS  OF  THE  SAME  THING.       135 

merely  intimates  his  mere  liking  or  aversion. 
For  unless  it  be  thought  an  index  to  the  law 
set  by  the  Deity  an  inexplicable  feeling  of 
approbation  or  disapprobation  can  hardly 
be  considered  a  measure  or  test.  And  in  the 
opinion  of  the  atheist  there  is  no  law  of  God 
which  his  inexplicable  feeling  can  point  at. 
To  the  believer  in  supposed  revelation  a 
human  law  is  good  or  bad  as  it  agrees  with 
or  differs  from  the  terms  wherein  the  rela- 
tion is  expressed. 

"  In  short,  the  goodness  or  badness  of  a 
human  law  is  a  phrase  of  relative  or  vary- 
ing import.  A  law  which  is  good  to  one 
man  is  bad  to  another  in  case  they  tacitly 
refer  it  to  different  or  adverse  tests.  The 
divine  laws  may  be  styled  good  in  the  sense 
with  which  the  atheist  may  apply  the  epithet 
to  human.  We  may  style  them  good  or 
worthy  of  praise,  inasmuch  as  they  agree 
with  utility  considered  as  an  ultimate  test. 
And  this  is  the  only  meaning  with  which  we 
can  apply  the  epithet  to  the  laws  of  God. 
Unless  we  refer  them  to  utility,  considered 
as  an  ultimate  test,  we  have  no  test  by  which 
we  can  try  them.  To  say  that  they  are 
good  because  they  are  set  by  the  Deity  is  to 
say  that  they  are  good  as  measured  or  tried 


136      MORAL  LAW  AND  CIVIL  LAW 

by  themselves.  But  to  say  this  is  to  talk 
absurdly ;  for  every  object  which  is  meas- 
ured or  every  object  which  is  brought  to  a 
test  is  compared  with  a  given  object  other 
than  itself.  If  the  laws  set  by  the  Deity 
were  not  generally  useful,  or  if  they  did 
not  promote  the  general  happiness  of  his 
creatures,  or  if  their  great  Author  were  not 
wise  and  benevolent,  they  would  not  be 
good  or  worthy  of  praise,  but  were  devilish 
and  worthy  of  execration. 

"  Before  I  conclude  the  present  digres- 
sion I  must  submit  this  further  remark  to  the 
attention  of  the  reader. 

"  I  have  intimated  in  the  course  of  this 
digression  that  the  phrase  law  of  nature  and 
the  phrase  natural  law  often  signifies  the  law 
of  God. 

' '  Natural  law  as  thus  understood  and  the 
natural  law  which  I  mentioned  in  my  fourth 
lecture  are  disparate  expressions.  The  nat- 
ural law  which  I  there  mentioned  is  a  por- 
tion of  positive  law  and  positive  morality. 
It  consists  of  the  human  rules,  legal  and 
moral,  which  have  obtained  at  all  times  and 
obtained  at  all  places. 

' '  According  to  the  compound  hypothesis 
which  I  mentioned  in  my  fourth  lecture, 


PARTS  OF  THE  SAME  THING.       137 

these  human  rules,  legal  and  moral,  have 
been  fashioned  on  the  law  of  God  as  indi- 
cated by  the  moral  sense.  Or,  adopting"  the 
language  of  the  classical  Roman  jurists, 
these  human  laws,  legal  and  moral,  have 
been  fashioned  on  the  divine  law  as  known 
by  natural  reason. 

1 '  But  besides  the  human  rules  which  have 
obtained  with  all  mankind  there  are  human 
rules,  legal  and  moral,  which  have  been 
limited  to  peculiar  times  or  limited  to  pe- 
culiar places. 

' '  Now,  according  to  the  compound  hypoth- 
esis which  I  mentioned  in  my  fourth  lec- 
ture, these  last  have  not  been  fashioned  on 
the  law  of  God,  or  have  been  fashioned  on 
the  law  of  God  as  conjectured  by  the  light 
of  utility. 

"  Being  fashioned  on  the  law  of  God  as 
shown  by  an  infallible  guide,  human  rules 
of  the  first  class  are  styled  the  law  of  nature; 
for  they  are  not  of  human  position  purely  or 
simply,  but  are  laws  of  God  or  nature  clothed 
with  human  sanctions.  As  obtaining  at  all 
times  and  obtaining  at  all  places,  they  are 
styled  by  the  classical  jurists  jus  gentium  or 
jus  omnium  gentium  (the  law  of  nations  or 
the  law  of  all  nations)." 


138       MORAL  LAW  AND  CIVIL  LAW 


CHAPTER  IX. 

EVIL   MUST   BE   SUPPRESSED   AND    GOOD    PRO- 
MOTED. 

THE  growth  of  public  morality  in  civil 
government  has  been  like  the  advance  of 
an  irresistible  army.  It  has  been  checked 
and  compelled  to  halt  and  fight  long,  des- 
perate battles,  but  has  never  retreated.  It 
has  utterly  overthrown,  crushed,  and  de- 
stroyed governments,  kings,  rulers,  and  peo- 
ple who  have  opposed  its  advance.  It  is  per- 
suasive, patient,  and  kind  to  such  as  heed 
warnings,  but  merciless  and  relentless  to 
those  who  will  not  yield.  It  will  not  con- 
sent that  immorality,  or  any  system  or  enter- 
prise or  business  that  is  immoral,  or  tends 
to  immorality,  or  has  an  immoral  influence, 
shall  in  any  way  be  sanctioned  or  excused. 
The  institution  of  slavery,  which  claimed 
divine  sanction  and  the  authority  of  divine 
revelation,  which  was  once  accepted  by  all 
men,  became  an  institution  especially  offen- 
sive to  the  advance  of  morality,  and  was 
ultimately  destroyed  by  the  decision  of  the 
court  upon  moral  principles  in  England,  and 


PARTS  OF  THE  SAME  THING.       139 

by  the  action  of  the  chief  executive  in  the 
United  States  upon  the  same  ground,  and 
other  nations  are  obeying  the  same  high 
command  and  abolishing  the  institution 
among  their  people,  so  that  it  is  unknown 
to-day  among  all  civilized  people.  Gam- 
bling, for  amusement  or  business,  was  once 
thought  to  be  a  mere  matter  of  individual 
taste  and  privilege,  but  when  its  immorality 
and  bad  influence  were  made  to  appear  it  was 
outlawed  everywhere  from  nation  to  nation. 
Once  the  gladiators  furnished  entertainment 
for  a  multitude  of  men,  women,  and  children 
by  sanction  of  government  and  universal 
consent ;  but  that  has  gone  with  the  fierce 
brutality  of  long  ago,  and  we  have  so  far 
progressed  that  prize  fighting  may  now  be 
understood  as  unlawful  in  every  State  in 
this  Union,  and  is  rapidly  being  driven  from 
the  soil  of  other  nations.  We  have  so  far 
progressed  in  our  application  of  the  sensi- 
tive demands  of  morality  in  this  direction 
that  bear  baiting,  bull  fighting,  cock  fight- 
ing, dog  fighting,  and  even  rat  baiting  are 
all  made  unlawful. 

Wager  of  battle  between  disputants  over 
personal  matters  or  property  rights  was  once 
a  legal  method  of  settling  questions,  but  we 


140      MORAL  LAW  AND  CIVIL  LAW 

have  now  reached  the  point  where  dueling, 
fighting,  and  even  quarreling  over  matters 
of  dispute  are  forbidden  by  law.  The  lot- 
tery business,  once  taken  to  be  a  legitimate 
business  and  matter  of  amusement,  so  highly 
regarded  in  the  United  States  within  the 
recollection  of  persons  now  living  as  that  it 
was  made  the  means  of  raising  funds  for 
erecting  public  buildings  in  the  capital  city 
of  the  nation ;  was  chartered  by  provision  of 
the  Indiana  Territorial  Legislature  in  1807 
in  the  Vincennes  University  in  Indiana,  by 
which  a  library  for  that  institution  of  learn- 
ing was  to  be  secured ;  was  considered  proper 
means  for  raising  money  with  which  to  build 
churches,  and  furnished  entertainments  for 
church  socials ;  but  the  immoral  character, 
influence,  and  results  of  the  lottery  business 
became  so  serious  that  it  was  declared  by 
Lord  Holt  from  the  King's  Bench  in  Eng- 
land long  ago,  without  any  act  of  Parliament 
upon  the  subject,  to  be  unlawful  because  of 
its  immorality.  For  the  same  reason  it  was 
always  unlawful  if  the  principles  of  law  had 
been  properly  applied  in  the  United  States. 
Every  State  in  this  nation  has  finally  de- 
clared the  lottery  business  to  be  unlawful, 
as  has  the  Supreme  Court  of  the  United 


PARTS  OF  THE  SAME  THING.       141 

States.  It  has  been  hunted  down  and  been 
driven  from  our  shores,  and  even  from  its 
temporary  resting  place  in  the  government 
of  Mexico,  because  of  the  immorality  and 
bad  influence  that  necessarily  followed  in  its 
wake.  There  is  one  universal,  thoroughly 
settled  rule  of  law  in  this  nation,  not  founded 
upon  legislation,  but  older  than  legislation, 
often,  however,  recognized  and  supported 
by  legislation,  that  any  business  that  is  im- 
moral, tends  to  immorality,  or  results  in 
promoting  immorality,  is  unlawful.  It  is 
not  only  unlawful,  but  cannot  be  made  law- 
ful by  any  act  of  the  Legislature,  nor  long 
maintained  as  lawful  even  by  decisions  of  any 
court  of  last  resort.  There  are  two  chief  con- 
cerns in  civil  government  which  have  been 
established  by  the  States  in  the  Union : 

First,  to  promote  morality,  and,  second, 
to  suppress  immorality. 

I  quote  again  upon  this  proposition,  Art. 
8,  Sec.  i,  of  the  present  Constitution  of  In- 
diana: "Knowledge  and  learning  gener- 
ally diffused  throughout  a  community  being 
essential  to  the  preservation  of  free  govern- 
ment, it  shall  be  the  duty  of  the  General  As- 
sembly to  encourage,  by  all  suitable  means, 
moral,  intellectual,  scientific,  and  agricul- 
10 


142      MORAL  LAW  AND  CIVIL  LAW 

tural  improvements,  and  to  provide  by  law 
for  a  general  and  uniform  system  of  common 
schools,  where  tuition  shall  be  without  charge 
and  equally  open  to  all." 

It  must  be  kept  in  mind  that  morality  is  a 
science ;  as  much  so  as  mathematics,  the 
oldest  science  known  among  men.  In  pursu- 
ance of  the  constitutional  provision  I  have 
just  quoted,  the  Legislature  of  Indiana  long 
ago  chartered  the  State  Board  of  Agricul- 
ture to  encourage  the  culture  of  whatever 
the  soil  can  produce.  The  Legislature  has 
also  established  at  great  expense,  in  obedi- 
ence to  this  section  of  the  Constitution,  a 
State  University  for  general  literary  culture, 
Purdue  University  for  special  instruction, 
State  Normal  School  for  preparing  teachers, 
schools  for  the  instruction  of  the  deaf  and 
dumb  and  blind  and  the  feeble-minded, 
and  a  general  system  of  common  schools 
providing  for  the  regulation  and  licensing 
of  school-teachers.  This  section  is  by  far 
the  most  important  section  in  our  Constitu- 
tion, and  the  first  subject  in  the  section,  the 
chief  and  greatest  subject  which  the  Legis- 
lature is  commanded  to  ' '  encourage  by  all 
suitable  means,"  is  morality.  Morality  is  a 
specific  and  independent  subject  in  the  Con- 


PARTS  OF  THE  SAME  THING.       143 

stitution,  as  much  as  science,  agriculture,  or 
education. 

This  section  was  taken  as  a  section  from 
our  former  Constitution,  with  only  two 
changes  of  any  importance.  One  of  these 
is  that  morality  is  taken  from  a  subordinate 
position  in  the  former  Constitution  and 
given  a  chief  place  in  the  section  in  our 
present  Constitution,  and  the  subject  of 
education  is  added. 

The  Legislature  is  given  the  power,  and 
is  commanded  by  this  constitutional  provi- 
sion to  do  anything  and  everything  that  may 
be  necessary  or  required  to  promote  educa- 
tion, and  to  suppress  everything  that  retards 
or  has  a  tendency  to  retard,  interfere  with, 
or  prevent  education.  It  has  the  same  au- 
thority and  has  the  same  command  as  to 
the  subject  of  agriculture  and  scientific  in- 
formation, and  has  the  same  authority  and 
has  the  same  command  as  to  the  subject  of 
morality.  The  Legislature  in  the  discharge 
of  its  duty  has  carefully  provided  a  public 
school  system  with  strict  requirements  as 
to  the  qualifications  of  teachers.  If  the 
Legislature  were  to  provide  that  the  schools 
should  teach  that  the  earth  is  flat,  and  that 
the  sun  literally  rises  and  sets,  it  will  be 


144      MORAL  LAW  AND  CIVIL  LAW 

conceded  that  such  a  law  would  be  absolute- 
ly void. 

The  story  is  told  that  in  an  early  day  in 
Indiana,  long  before  this  constitutional  pro- 
vision and  the  coming  of  our  common  school 
system,  a  school-teacher  went  into  one  of 
our  country  neighborhoods  to  secure  the 
signatures  of  parents  to  an  article  employing 
him  as  a  teacher  and  agreeing  to  send  their 
children  to  his  school.  He  was  so  fortunate 
as  to  be  admitted  to  one  of  those  quasi  social 
gatherings  so  common  in  an  early  day  in  this 
State,  known  as  wool  pickings,  where  the 
women  of  the  neighborhood  met  together 
to  enjoy  themselves  socially,  picking  the 
burs  and  Spanish  needles  out  of  the  wool, 
so  that  it  could  be  used.  He  made  his  busi- 
ness known  to  the  women,  and  asked  those 
who  were  heads  of  families  to  sign  it,  and 
the  others  to  speak  to  their  husbands  or 
fathers  about  it  so  that  they  would  be  ready 
when  he  went  around  to  see  them.  He  was 
a  fluent  talker,  and  had  had  much  experience 
in  his  work,  and  had  made  a  very  favorable 
impression  upon  his  auditors.  He  was  on 
the  point  of  taking  his  departure  when  one 
of  the  women  informed  him  that  there  had 
been  trouble  in  that  neighborhood  with 


PARTS  OF  THE  SAME  THING.       145 

a  former  teacher  on  the  question  whether 
the  earth  was  round  or  flat,  and  that  she 
and  her  husband  would  want  to  know  his 
views  on  that  subject  before  they  signed 
that  article.  Another  woman  showed  very 
clearly  that  the  subject  was  a  very  familiar 
one  to  her,  and  that  she  differed  from  the 
first  speaker,  and  demanded  that  he  should 
announce  his  views.  He  saw  at  once  that 
he  had  a  difficult  case  on  his  hands,  but  his 
skill  was  equal  to  the  occasion.  Every  eye 
was  on  him,  and  they  awaited  his  answer. 
He  answered  that  he  had  been  educated  in 
both  schools  and  would  teach  that  the  earth 
was  round  or  flat,  just  as  they  preferred. 
After  the  adoption  of  this  constitutional 
provision  and  the  legislation  in  pursuance 
thereof,  that  teacher  with  all  the  quacks 
like  him  took  their  departure  from  Indiana. 
It  would  not  be  a  pleasant  subject  for  me,  a 
native  Hoosier,  to  dwell  upon  or  consider  at 
great  length  the  condition  of  Indiana  as  to 
illiteracy  when  our  present  Constitution  was 
adopted.  But  I  take  great  pleasure  in  call- 
ing attention  to  the  fact  that  Indiana  has 
made  such  progress  under  this  constitutional 
provision  and  her  favorable  legislation,  with 
her  licensed  and  qualified  school-teachers 


146      MORAL  LAW  AND  CIVIL  LAW 

and  universities  and  schools,  that  no  Hoosier 
need  be  ashamed  of  the  showing  we  are  now 
able  to  make.  We  have  also  made  commend- 
able progress  in  agriculture  and  scientific 
departments. 

I  make  the  statement  that  we  have  made 
less  progress  in  moral  science  and  morality 
than  we  have  in  any  other  science ;  much 
less  than  in  education  or  agriculture.  It 
will  be  found,  upon  investigation,  that  old 
methods  of  teaching  have  been  abandoned, 
and  amazing  improvements  in  methods  and 
in  good  results  have  been  accomplished  with 
wonderfully  important  and  rapidly  grow- 
ing facilities,  conveniences,  and  capacity  for 
teaching  and  imparting  and  acquiring  edu- 
cation; old  methods  of  agriculture  have 
been  abandoned,  and  the  fields  have  been 
cleared  of  trees,  stumps,  and  stones.  Ma- 
chinery and  mechanical  improvements  have 
been  brought  into  use  to  such  an  extent 
that  a  person  can  hardly  comprehend  the 
bettered  condition  and  wonderful  advance 
that  has  been  made  upon  this  subject  since 
the  adoption  of  our  present  Constitution. 
The  discoveries  of  our  people,  and  the  adop- 
tion of  the  discoveries  made  by  others,  with 
instructions  given,  have  made  the  growth 


PARTS  OF  THE  SAME  THING.       147 

of  scientific  information  in  the  same  period 
in  our  State  a  matter  of  constant  amaze- 
ment. In  education,  agriculture,  and  sci- 
ence it  is  necessary  only  to  call  attention  to 
the  subjects  to  startle  a  person  with  his  own 
observations  and  the  evidences  all  about 
him  of  the  amazing  advance  in  these  re- 
gards. Now,  when  I  ask  my  fellow-citizens 
in  this  State  whether  we  have  progressed 
in  sound  morality  since  1851,  they  stare  at 
me  and  either  speak  with  great  hesitation 
and  uncertainty  or  ask  time  to  consider  be- 
fore they  attempt  to  answer  at  all. 

We  are  proud  of  our  advance  in  educa- 
tion, in  agriculture,  and  scientific  informa- 
tion in  Indiana  during  the  last  twenty-five 
years ;  but  no  man  is  at  all  proud  or  satisfied 
with  our  advance  in  morality.  I  do  not 
want  to  speak  disparagingly  upon  this 
subject  further  than  I  am  compelled.  We 
have  advanced  in  moral  culture,  and  have 
reason  for  encouragement,  not  so  much  at 
the  extent  of  our  advancement,  but  that  we 
have  advanced  at  all,  and  have  not  in  fact 
retreated.  I  think  no  man  who  has  made 
careful  investigation  will  claim  that  moral 
improvement  has  been  equal  to  our  improve- 
ment in  these  other  subjects.  This  same 


148      MORAL  LAW  AND  CIVIL  LAW 

state  of  facts  in  regard  to  Indiana  is  true 
generally  in  regard  to  every  other  State  in 
the  Union.  There  has  either  been  less 
interest  taken  in  the  subject  of  morality 
than  in  education,  or  agriculture,  or  the 
sciences,  or  else  there  has  been  some 
greater  obstruction  in  this  line  of  culture. 
Let  us  look  briefly  at  the  methods  of  pro- 
motion in  other  subjects,  and  for  the 
obstruction  thereto,  and  for  the  promotion 
of  morality  and  obstruction  thereto,  for 
the  purpose  of  finding,  if  possible,  the 
cause  which  has  produced  this  disparage- 
ment. The  State  of  Indiana,  by  her  consti- 
tutional provision  and  legislation  based 
upon  it,  took  the  subjects  of  morality, 
agriculture,  scientific  information,  and  edu- 
cation under  its  special  patronage  for  the 
purpose  of  promoting  these  subjects.  For 
the  purpose  of  promoting  agriculture  the 
Legislature  passed  laws  providing  for  a 
system  of  highways,  drainage,  and  many 
other  matters,  and  also,  by  penal  acts, 
fines,  and  imprisonments,  restraining  stock 
from  running  at  large  to  prey  upon  the 
crops,  fencing  of  railroads,  cutting  of  nox- 
ious weeds,  and  has  encouraged  by  re- 
wards care  in  the  productions  of  the  soil, 


PARTS  OF  THE  SAME  THING.       149 

and  in  every  way  preventing  what  would 
result  in  or  tend  to  the  general  obstruction 
of  agriculture.  There  is  not  one  influence 
that  is  known  to  have  an  injurious  effect 
upon  general  agriculture  that  is  not  for- 
bidden by  the  law  of  Indiana  and  sought  to 
be  removed. 

Concerning  the  subjects  of  education, 
agriculture,  or  science,  which  are  all  the  sub- 
jects except  morality  mentioned  in  the  con- 
stitutional provision  referred  to,  nothing  is 
permitted  by  law,  or  in  any  way  legalized  or 
sanctioned,  which  is  understood  to  have  a  ten- 
dency to  interfere  with  or  obstruct  the  work 
or  development  of  either  of  these  subjects. 

These  subjects  have  a  free  course  and  a 
full  chance  to  exert  all  their  influence. 
Their  pathway  is  cleared  before  them. 
Universities,  colleges,  schools,  and  about 
fourteen  thousand  teachers  are  maintained 
and  enormous  expense  incurred  by  the  State 
in  specific  instruction  upon  these  subjects. 
For  all  of  this,  with  the  great  prospects 
ahead  of  us  in  these  regards,  let  us  all 
rejoice.  Our  school  law  provides  that 
teachers  must  pass  an  examination  cover- 
ing certain  branches  of  education,  and  such 
branches  must  be  taught,  but  they  are  not 


150      MORAL  LAW  AND  CIVIL  LAW 

required  to  be  examined  upon  moral  science 
or  to  teach  it. 

In  many  schools  in  Indiana,  heretofore, 
teachers  have  been  given  to  understand 
that  they  were  not  to  teach  the  whole  truth 
upon  certain  subjects  which  are  not  only 
matters  of  scientific  truth,  but  also  impor- 
tant to  the  interest  of  public  morality. 

To  the  credit  of  our  last  Legislature  it 
passed  an  act  compelling  school  board 
trustees,  superintendents,  and  teachers  to 
teach  the  whole  truth.  It  is  humiliating  to 
admit  that  evil  influences  have  been  so 
great  in  our  State,  as  has  been  true  of 
many  other  States,  that  even  science  was 
compelled  to  close  its  lips. 

It  is  another  evidence  of  the  irresistible 
power  of  moral  force  that  it  can  gain  such 
victories. 

Strange  as  it  may  seem  science  had  sub- 
mitted and  the  public  school  system  had 
been  subjugated,  and  morality  alone  came 
to  the  rescue. 

Hereafter  the  injurious  effects  of  alco- 
holic drinks  and  narcotics  will  be  taught 
under  compulsion  in  all  our  public  schools. 
Morality  is  the  protecting  angel  for  all 
truth. 


PARTS  OF  THE  SAME  THING.       151 

I  have  said  that  the  Legislature  of  Indiana 
has  taken  care  and  provided  at  great  ex- 
pense and  by  suitable  means  for  general 
education  and  specific  instruction  in  agri- 
culture and  the  sciences,  but  I  inquire,  What 
system  and  what  means  have  been  provided 
for  specific  instruction  in  moral  science? 

This  science,  though  made  the  chief  sub- 
ject and  greatest  concern  in  the  Constitu- 
tion, has  absolutely  no  legislative  provision 
for  its  promotion.  There  must  be  legisla- 
tive provision  made  for  instruction  in  the 
principles  and  rules  and  their  application  in 
moral  science.  Whatever  instruction  in 
the  great  department  of  morality  there  may 
have  been  in  the  public  schools  it  has  been 
incidental  and  as  a  side  matter  of  minor 
importance  to  other  branches  of  education 
of  absolute  importance. 

Heretofore  the  Legislature  has  contented 
itself  in  regard  to  this  subject  by  a  some- 
what vigorous  effort  to  suppress  acts  of 
immorality. 

The  theory  is  thoroughly  settled  that  if 
an  act,  transaction,  or  business  is  immoral, 
or  tends  to  immorality,  it  must  be  sup- 
pressed by  law. 

The   mere   effort,  however  vigorous,  on 


152       MORAL  LAW  AND  CIVIL  LAW 

the  part  of  the  State  to  suppress  immorality 
is  not  sufficient  to  meet  the  demands  upon 
this  subject. 

But  the  effort  to  suppress  immorality  has 
not  been  and  is  not  now  consistent,  and 
fails  at  most  important  points.  To  this  I 
shall  presently  call  attention  and  attempt 
to  show  what  I  believe  to  be  a  serious 
failure  in  this  regard. 

I  call  attention  to  the  suitable  means  and 
methods  by  which  the  State  has  sought  to 
promote  the  interest  of  these  other  subjects. 

For  education  it  has  chartered  and  sup- 
ports great  institutions  and  a  general 
system.  For  agriculture  it  has  done  the 
same  thing.  Like  provisions  have  been 
made  for  science. 

After  the  most  careful  thought  and  in- 
vestigation on  the  part  of  Robert  Dale 
Owen,  Governor  Whitcomb,  and  the  other 
distinguished  men  who  devised  our  common 
school  system,  it  was  determined  that  the 
State  should  take  this  subject  under  its 
special  care  and,  among  other  things,  for 
the  purpose  of  promoting  the  efficiency  and 
protecting  the  business  and  profession  of 
teaching,  that  a  license  system  for  teachers 
was  the  best  plan.  This  plan  has  worked 


PARTS  OF  THE  SAME  THING.       153 

so  well  that  it  stands  to-day  with  universal 
approbation. 

By  this  plan  we  have  developed  a  great 
army  of  very  efficient  and  successful 
teachers  whose  attainments  are  in  demand 
and  whose  employment  is  sure. 

The  inefficient  teachers  who  could  often 
secure  employment  because  willing  to 
accept  low  wages  have  all  departed  or  else 
qualified  themselves  for  the  work.  Such 
persons  were  generally  successful  competi- 
tors against  better  qualified  applicants,  on 
the  ground  of  economy. 

This  plan  of  examining  and  licensing 
teachers  has  wonderfully  promoted  and 
protected  the  profession  and  business  of 
school-teaching  and  the  cause  of  education 
for  which  it  was  designed. 

For  the  purpose  of  promoting  the  science 
of  medicine  and  surgery  after  a  most 
thorough  investigation  by  the  most  intelli- 
gent men  in  these  professions,  and  others 
whose  judgment  was  entitled  to  great 
weight,  it  was  decided  that  the  best  method 
to  accomplish  this  end  was  by  a  test  of  fit- 
ness and  license  for  practitioners.  Though 
this  system  has  been  in  existence  less  than 
ten  years  in  Indiana  it  has  accomplished 


154    MORAL  LAW  AND  CIVIL  LAW 

more  for  this  science  in  that  short  period 
than  had  been  done  in  fifty  years  before, 
and  is  universally  approved. 

This  system  has  had  like  results  in  other 
States.  A  license  system  for  ministers  in 
some  form  is  now  adopted  by  nearly  all  re- 
ligious denominations  as  the  best  system 
for  promoting  the  Gospel  and  protecting 
the  business  and  vocation  of  preaching. 

Whenever  the  State  desired  specially  to 
promote  a  business  or  enterprise  by  control- 
ling it,  it  has  been  settled  by  the  experience 
of  all  the  past  that  the  best  method  to 
accomplish  the  end  designed  is  by  a  license 
system. 

This  has  been  proven  true  in  education, 
in  agriculture  through  incorporated  soci- 
eties, in  the  science  of  medicine  and  surgery, 
in  marriage,  and,  in  fact,  in  all  corporated 
or  private  enterprises. 

Incorporation  is  a  license.  The  business 
and  individuals  licensed  or  incorporated  to 
conduct  any  enterprise  are  thereby  favored 
and  protected  for  the  benefit  of  the  enterprise. 

Farmers,  merchants,  manufacturers  do 
not  need  license,  because  they  can  take  care 
of  themselves. 

No  profession,  business,  or  enterprise  is 


PARTS  OF  THE  SAME  THING.       155 

licensed  or  incorporated  upon  a  theory  or 
purpose  of  lessening  or  restraining  the 
magnitude  of  the  profession,  business,  or 
enterprise.  Because  of  the  good  results 
license  systems  are  increasing  for  laudable 
enterprises,  as  penal  enactments  are  in- 
creasing against  immoral  enterprises. 

The  only  purpose  of  a  penal  act  is  to 
suppress ;  so  the  only  purpose  a  license  act 
•can  have  is  to  promote. 

As  a  good  illustration  of  the  purpose  and 
results  of  a  license  theory  I  use  the 
Methodist  Episcopal  Church. 

It  was  organized  a  little  more  than  a 
hundred  years  ago  with  six  members,  and 
began  work  with  a  license  system  for  its 
ministry,  and  undertook  thereby  the  evan- 
gelization of  the  world.  So  successful  has 
it  been  by  virtue  of  that  system  that  its 
growth  has  been  fabulous  beyond  the  re- 
sult in  any  other  denomination,  until  now 
it  numbers  its  communicants  and  ministers 
in  every  clime  on  the  globe,  and  its  millions 
of  money  follow  their  footsteps. 

This  is  the  working  of  a  license  system 
by  an  ecclesiastical  government,  but  it  is 
the  same  system  in  principle  when  worked 
by  a  civil  government  for  any  enterprise. 


156      MORAL  LAW  AND  CIVIL  LAW 

Such  a  system  has  never  failed  to  produce 
like  results  when  applied  to  any  enterprise 
unless  possibly  in  the  case  of  some  business 
too  insignificant  to  be  promoted  by  any  aid. 

The  inevitable  conclusion  is  that  a  license 
system  is  a  wise  and  necessary  provision  for 
the  promotion  and  protection  of  any  laud- 
able enterprise  that  needs  the  special  super- 
vision of  the  State  for  the  good  it  may  be 
able  to  do  the  public. 

License  systems  have  been  tested  and 
tried  often  and  by  many  governments,  for 
the  purpose  of  preventing  the  evil  effects  of 
immoral  enterprises.  These  experiments 
have  been  thoroughly  made  and  this  system 
thoroughly  tested  for  this  purpose  and  found 
in  every  instance  to  produce  results  exactly 
the  reverse  of  what  was  desired. 

This  theory  of  legislation  has  been  ap- 
plied to  gambling,  lotteries,  prostitution, 
and  the  exhibitions  and  enterprises  which 
were  recognized  as  dangerous  to  public 
morals  and  public  peace  and  under  con- 
ditions more  or  less  severe,  with  a  revenue 
provision. 

These  license  systems  for  each  of  these 
immoral  enterprises  have  proven  failures  so 
serious  as  to  be  alarming,  and  have  been 


PARTS  OF  THE  SAME  THING.     -  157 

abandoned  almost  universally  where  civil- 
ized nations  exist  and  are  remembered  with 
disgust  and  loathing  by  decent  people. 

Only  a  few  years  ago  the  Louisville  Lot- 
tery opened,  its  offices  and  advertised  its 
business  in  the  cities  and  towns  all  over  the 
United  States  with  impunity,  and  many 
people  who  stood  high  in  business  and  so- 
ciety invested  largely  and  regularly  in  the 
enterprise. 

That  organization  was  licensed  by  a  spe- 
cial act  of  the  Kentucky  Legislature,  and 
presided  over  and  officered  by  distinguished 
men  who  were  proud  of,  and  ready  to  die  for, 
their  reputation. 

The  act  of  the  Legislature  had  provided 
that  this  licensed  and  chartered  lottery 
should  pay  annually  to  the  State  treasury  a 
sum  of  money. 

The  Court  of  Appeals,  in  deciding  upon 
this  feature  of  the  legislative  act  in  the  case 
of  Commonwealth  vs.  Douglass,  before  re- 
ferred to  in  this  work,  said :  "When  we  con- 
sider that  honesty,  morality,  religion,  and 
education  are  the  main  pillars  of  the  State, 
and  for  the  protection  and  promotion  of 
which  government  was  instituted  among 

men,  it  at  once  strikes  the  mind  that  govern - 
11 


158      MORAL  LAW  AND  CIVIL  LAW 

ment  through  its  agents  cannot  throw  off 
these  trust  duties  by  selling,  bartering,  or 
giving  them  away." 

In  1867  the  Legislature  of  Mississippi 
granted  a  charter  (license)  to  ttie  Mississippi 
Agricultural,  Educational,  and  Manufactur- 
ing Aid  Society,  with  the  right  to  issue  and 
sell  lottery  tickets  and  to  conduct  the  lottery 
business  in  consideration  of  the  annual  sum 
of  $5,000,  and  $1,000  in  tax  and  one  half  of 
one  per  cent  of  the  amount  received  from 
the  sale  of  the  tickets  to  be  paid  into  the 
State  treasury  for  the  privilege  granted. 

A  question  arose  as  to  the  validity  of  that 
act  of  legislation.  The  society  claimed  that 
it  had  secured  vested  right  by  virtue  of  that 
legislation,  public  acquiescence,  and  large 
investment  of  money  in  the  business.  That 
question  passed  through  the  regular  course 
to  the  Supreme  Court  of  the  United  States, 
in  the  case  of  Stone  et  al  vs.  Mississippi,  101 
U.  S.,  814.  That  court  considered  the  act 
of  the  Legislature  with  all  that  it  contem- 
plated, and  also  the  lottery  business  with  all 
that  it  contemplated,  and  the  real  character 
of  the  business,  and  decided  that  the  lottery 
business  was  inherently  immoral,  and  the 
legislative  act  chartering  the  business  was 


PARTS  OF  THE  SAME  THING.       159 

void.  Concerning  lotteries  the  court  said : 
' '  We  are  aware  that  formerly,  when  the 
sources  of  public  revenue  were  fewer  than 
now,  they  were  used  in  all  or  some  of  the 
States,  and  even  in  the  District  of  Columbia, 
to  raise  money  for  the  erection  of  public 
buildings,  making  public  improvements, 
and  not  infrequently  for  educational  and 
religious  purposes ;  but  this  court  said,  more 
than  thirty  years  ago,  speaking  through  Mr. 
Justice  Grier,  in  Phalen  vs.  Virginia,  8  How. , 
163,  1 68,  that  'experience  has  shown  that 
the  common  forms  of  gambling  are  com- 
paratively innocuous  when  placed  in  con- 
trast with  the  widespread  pestilence  of  lot- 
teries. The  former  are  confined  to  a  few 
persons  and  places,  but  the  latter  infests  the 
whole  community ;  it  enters  every  dwelling ; 
it  reaches  every  class ;  it  preys  upon  the  hard 
earnings  of  the  poor;  and  it  plunders  the 
ignorant  and  the  simple.  .  .  .  That  they  are 
demoralizing  in  their  effects,  no  matter  how 
carefully  regulated,  cannot  admit  of  a  doubt. 
When  the  government  is  untrammeled  by 
any  claim  of  vested  rights  or  chartered 
privileges  no  one  has  ever  supposed  that 
lotteries  could  not  be  lawfully  suppressed, 
and  those  who  manage  them  punished  se- 


160      MORAL  LAW  AND  CIVIL  LAW 

verely  as  violators  of  the  rule  of  social  mo- 
rality.' " 

Of  the  legislative  act  the  court  said,  ' '  No 
Legislature  can  bargain  away  the  public 
morals  or  the  public  health  or  the  public 
peace."  The  court  held  that  the  act  of  the 
Legislature  of  Mississippi  licensing  the  lot- 
tery was  void. 

Finally  the  public  came  to  see  by  the 
light  thrown  upon  the  business  that  it  was 
immoral  and  dishonorable.  The  decision 
of  the  Court  of  Appeals  in  Kentucky  to 
which  I  have  referred  followed,  and  declared 
that  the  legislative  act  licensing  the  Louis- 
ville Lottery  was  void,  and  that  no  act  could 
be  passed  that  would  be  valid  for  such  busi- 
ness because  of  its  immorality,  and  the 
Louisville  Lottery  fled  from  the  State  of 
Kentucky  never  to  return. 

A  like  history  has  been  recorded  of  the 
Louisiana  Lottery  since  the  Louisville  Lot- 
tery was  driven  out  of  existence  by  the 
courts. 

The  law  is  now  settled  in  this  nation  that 
no  Legislature  can  license  the  lottery  busi- 
ness, because  of  its  bad  effect  upon  public 
morals. 

The  United  States  government  has  arrayed 


PARTS  OF  THE  SAME  THING.       161 

all  its  power  and  closed  its  mails  against  this 
business,  and  woe  be  to  the  transgressors. 

President  Harrison  made  it  the  subject  of 
a  special  message  to  Congress,  urging  imme- 
diate action  for  the  protection  of  an  imper- 
iled nation. 

The  Louisiana  Lottery  had  secured  such 
an  influence  in  the  State  of  Louisiana  that 
it  is  evident  it  could  not  have  been  broken 
up  by  action  of  State  authorities  if  the  United 
States  government  had  not  closed  its  mails 
and  declared  hostility  against  it. 

The  judicial  action  against  the  lottery 
business  is  perhaps  the  best  illustration  of 
the  wonderful  growth  in  public  sentiment 
against  immorality,  and  also  forcibly  shows 
the  growth  of  legal  comprehension  of  moral 
principles  and  their  application  to  civil  af- 
fairs. 

Extensive  and  expensive  provisions  have 
been  made  for  teaching  and  promoting  all 
the  other  subjects  mentioned  in  the  consti- 
tutional provision  in  Indiana  except  mo- 
rality, and  futile  attempts  have  been  made 
to  authorize  things  against  the  interest  of 
morality. 

It  may  be  said  that  the  State  in  the  erec- 
tion of  great  buildings,  and  a  school  system 


1 62      MORAL  LAW  AND  CIVIL  LAW 

and  costly  provisions  for  education,  and  by 
her  chartered  institutions  and  aid  to  agricul- 
ture, and  her  encouragement  and  aid  to  scien- 
tific culture,  has  sought  to  aid  and  has  pro- 
moted the  subject  of  morality. 

But,  I  ask,  Has  not  morality,  unaided  by 
the  State,  done  more  for  each  of  these  sub- 
jects named  within  the  Constitution  than 
they  have  done  for  morality  with  all  their 
aid? 

I  humbly  claim  for  morality  stately  build- 
ings, chartered  institutions,  public  funds, 
legislative  provision  commensurate  with  the 
importance  of  the  subject — in  the  language 
of  the  Constitution,  " suitable  means"  for 
its  promotion. 

Jehoshaphat,  in  the  third  year  of  hisr 
reign,  sent  to  his  princes  Ben-hail,  Obadiah, 
Zechariah,  and  to  Nethaneel  and  to  Mich- 
aiah,  to  teach  in  the  cities  of  Judah,  and 
with  them  nine  Levites  and  two  priests. 

"  And  they  taught  in  Judah,  and  had  the 
book  of  the  law  of  the  Lord  with  them,  and 
went  about  throughout  all  the  cities  of  Ju- 
dah, and  taught  the  people." 

It  is  recorded  that  Jehoshaphat  waxed 
great  and  had  much  business  in  the  cities  of 
Judah.  There  certainly  ought  to  be  some- 


PARTS  OF  THE  SAME  THING.       163 

body,  and  by  some  means  officially,  teaching 
in  the  cities  of  this  nation  upon  the  subject 
of  morality. 

Reading  thanksgiving  proclamations  by 
our  presidents  and  governors  we  are  almost 
startled  by  the  devout  spirit  manifested,  and 
if  it  were  not  for  our  observations  would  ex- 
pect to  see  every  place  of  divine  worship 
filled  by  the  people  on  the  day  set  apart  for 
that  purpose. 

The  rush  of  college  students  and  public 
school  boys,  with  an  occasional  college 
president  and  professors,  with  an  army 
of  young  and  middle-aged  men  on  such 
occasions  to  witness  football  games  and 
other  sports,  and  the  meager  attendance  on 
divine  worship  are  enough  to  start  the 
inquiry  whether  this  custom  has  not  be- 
come a  mockery  and  would  better  be  aban- 
doned. 

I  venture  to  suggest  that  even  the  ser- 
mons on  the  occasions  seem  to  be  vieing 
with  the  proclamations  in  high-sounding, 
far-away  piety  and  not  quite  enough  of  com- 
mon morality  for  strengthening  the  citizen 
in  the  duties  of  everyday  life. 

We  have  up  to  this  point  been  consider- 
ing the  substance  of  things,  what  has  been 


164     MORAL  LAW  AND  CIVIL  LAW 

accomplished,  methods  tested,  and  the  prin- 
ciples at  work. 

Mythology  says  that  Hercules  was  des- 
tined by  the  gods  to  complete  twelve  great 
undertakings  before  his  work  was  ended. 

Shall  we  stop  here  in  the  consideration  of 
the  work  and  destiny  of  the  twin  giants, 
moral  law  and  civil  law? 

To  advance  is  not  an  easy  undertaking. 

Morality  fights  no  sham  battles  nor  assails 
an  unarmed  foe. 

We  must  take  our  places  in  the  ranks  and 
perform  our  duty  or  stand  aside  while  the 
column  goes  by. 

We  can  hear  the  marching  columns  sing : 

"  We  have  battles  to  fight ; 

We  have  foes  to  subdue  ; 
Time  waits  for  no  man, 

And  we  wait  not  for  you. 

"  The  mower  mows  on, 
Though  the  adder  may  writhe, 

And  the  copperhead  coil 
'Round  the  blade  of  the  scythe." 

We  have  called  attention  specifically  to 
some  things  that  have  been  tolerated  and 
some  that  have  been  approved  and  author- 
ized by  law,  but  have  at  last  been  forbidden 
and  suppressed  because  of  their  immorality. 


PARTS  OF  THE  SAME  THING.       165 

As  a  matter  of  legal  principle  to  which, 
there  is  not  an  exception  in  its  application, 
whatever  is  immoral  or  tends  to  immorality 
must  be  suppressed  and  cannot  exist  by  per- 
mission. The  great  undertakings  that  civil 
government  is  destined  yet  to  complete  no 
man  has  presumed  to  number.  That  they 
are  many  no  man  will  question. 

That  these  are  to  be  worked  out  by  citi- 
zens through  the  application  of  legal  princi- 
ples and  methods  must  be  clear  to  us  all. 

I  shall  content  myself  with  the  considera- 
tion of  what  I  think  will  be  the  next  hercu- 
lean undertaking  of  civil  government  in 
the  States  and  by  our  general  government. 


166      MORAL  LAW  AND  CIVIL  LAW 


CHAPTER  X. 

NO  PRIVILEGES  FOR  EVIL. 

FROM  considerations  presented  in 
former  chapters  in  this  work  I  feel 
safe  in  saying  that  whenever  the 
question  is  settled  that  any  business  or 
any  conduct  is  immoral,  that  settles  another 
question  that  follows  as  an  inevitable  con- 
clusion, that  business  or  conduct  at  once 
becomes  an  outlaw  and  cannot  be  given 
any  legal  status  by  any  power  known  to 
civilized  government. 

It  has  taken  a  long  time  in  many  cases 
to  settle  the  question  of  immorality. 

As  has  been  shown  in  many  cases  cited 
herein,  enterprises,  institutions,  and  conduct 
long  accepted  and  looked  upon  as  not  mat- 
ters of  public  concern,  are  sometimes  sud- 
denly seen  to  be  improper  and  lawless  and 
dangerous  to  the  public  welfare.  In  many 
cases  long  discussion,  growth  of  intelligence, 
and  sometimes  bloody  strife  have  been 
required  to  bring  out  full  comprehension  of 
the  real  character  of  great  evils.  Some  of 


PARTS  OF  THE  SAME  THING.       167 

the  greatest  evils  have  not  always  and  under 
all  conditions  been  evils  or  immoral. 

Human  slavery  had  its  favorable  condi- 
tions. 

Daniel  was  a  captive  slave  in  Babylon, 
and  Joseph  was  sold  for  twenty  pieces  of 
silver,  but  each  reached  a  position  that 
would  gratify  the  most  ambitious,  and  for 
which  a  man  could  afford  to  become  a 
slave.  Eleazer  was  Abraham's  slave,  but 
no  greater  advantage  could  have  fallen  to 
the  lot  of  Eleazer,  and  was  greatly  to  Abra- 
ham's advantage. 

In  unnumbered  cases  men  and  women, 
brought  by  force  from  their  savage  and 
beastly  condition  in  Africa  to  the  United 
States,  became  the  property  and  were 
brought  under  the  influence  of  humane 
masters  and  religious  teachings,  which  has 
been,  and  will  be  to  them  and  to  their 
children  an  untold  blessing  in  all  time  to 
come. 

Many  have  been  the  cases  where  the 
slave  in  old  age,  disability,  or  sickness  was 
free  from  care  and  his  wants  met  by  a 
kind-hearted  master. 

Many  things  could  be  truthfully  said  in 
favor  of  African  slavery. 


1 68       MORAL  LAW  AND  CIVIL  LAW 

We  can  easily  call  up  the  scene  of 
life  before  the  civil  war  in  this  nation, 
when,  as  they  were  called,  the  old  colored 
aunties  and  uncles  clung  to  their  master 
and  mistress  and  to  their  children  with  a 
childlike  and  simple  affection  that  was  most 
beautiful. 

I  have  in  mind  actual  cases  where  these 
old  uncles  and  aunties  loved  their  master 
and  mistress,  and  cared  for  and  loved  their 
little  and  grown  masters  and  mistresses  in 
the  family,  with  that  devotion  we  all  long 
for,  but  seldom  see,  in  the  homes  in  these 
days  between  employer  and  employees. 
That  tender  relation  between  Uncle-  Tom 
and  Little  Eva,  truthfully  pictured  by  Mrs 
Stowe,  has  made  many  a  little  girl  who  has 
contemplated  it  wish  she  had  such  a  faith- 
ful friend  as  Uncle  Tom. 

I  say  that  slavery  had  many  things  that 
could  be  said  with  great  force  in  its  favor. 
So  strong  were  these  favorable  arguments 
for  slavery  that  it  took  two  hundred  and 
fifty  years  and  an  awful  experience  to 
overcome  them.  That  other  side  of  slavery 
given  in  Uncle  Toms  Cabin  .was  always  true 
in  the  United  States. 

Slavery  was  always  wrong  in  principle, 


PARTS  OF  THE  SAME  THING.       169 

and  its  general  influence  and  results  were 
always  bad. 

Thomas  Jefferson,  when  he  contemplated 
the  nature  of  the  institution  of  slavery 
more  than  fifty  years  before  the  civil  war, 
uttered  the  honest  sentiment  of  his  heart 
when  speaking  of  slavery.  He  said,  "  I 
tremble  for  my  country  when  I  reflect  that 
God  is  just  and  that  his  justice  will  not 
slumber  forever." 

Well  might  Jefferson  tremble  under  such 
contemplation  when  he  saw  that  institution 
recognized  and  to  be  continued  by  public 
acquiescence. 

Jefferson's  fears  were  well  founded.  A 
just  God  did  amid  the  thunder  and  light- 
ning of  war  destroy  the  wicked  institution. 

Slavery,  from  that  fatal  day  in  the  year 
1620,  was  always  legally  wrong  and  im- 
moral as  an  institution,  and  by  permitting 
it  to  exist  anywhere  in  the  United  States 
the  people  invited  the  storm  that  swept  it 
away  at  such  awful  cost.  Every  year  that 
it  continued  made  the  cost  of  its  removal 
the  greater. 

There  were  many  things  that  could  be 
said  for  the  lottery  business.  It  was  often 
used  as  a  method  for  raising  money  for 


i/o      MORAL  LAW  AND  CIVIL  LAW 

good  purposes — in  erecting  public  buildings 
and  educational  enterprises,  and  for  many 
other  purposes  that  were  laudable.  In  such 
cases  some  consideration  was  given  for 
every  investment  and  ticket  sold. 

It  took  centuries  to  fully  expose  the 
wrong  principle  and  immorality  in  this  busi- 
ness. When  that  was  accomplished  the 
lottery  business  became  per  se  unlawful, 
and  cannot  be  authorized  under  any  condi- 
tions. 

The  United  States  government  is  founded 
upon  the  right  to  religious  liberty. 

Men  may  teach,  and  organize  to  teach,  if 
they  desire,  that  there  is  no  God,  or  they 
may  adopt  any  form  of  worship  and  teach 
anything  as  to  the  character  of  the  divine 
Being  they  like,  or  promulgate  any  reli- 
gious creed,  so  long  as  they  keep  within  the 
bounds  of  public  morality.  But  they  can- 
not transcend  that  boundary. 

The  Mormon  Church  taught  and  practiced 
plurality  of  wives.  For  that  immorality  in 
religious  belief  the  government  by  force 
broke  up  their  religion,  made  it  unlawful, 
and  confiscated  the  great  estate  of  Brigham 
Young.  Many  good  things  could  be  said 
for  the  Mormon  Church,  but  in  so  far  as  it 


PARTS  OF  THE  SAME  THING.       171 

encouraged  or  promoted  immorality  it  was 
an  outlaw,  as  in  any  other  case. 

It  might  be  said  that  if  two  or  more  per- 
sons for  mere  pastime  and  amusement, 
who  can  afford  to,  without  inconvenience, 
see  fit  to  put  up  a  small  wager  on  a  quiet 
game,  it  concerns  no  one  but  themselves. 

But  gambling  is  on  a  wrong  and  danger- 
ous principle  and  is  immoral,  and  for  that 
reason  all  public  and  private  gambling, 
even  in  the  quietude  of  a  private  home,  is 
rigidly  forbidden.  It  has  been  fully  shown 
that  the  experiment  often  tried  of  licens- 
ing and  regulating  lotteries,  gambling,  and 
other  immoral  lines  of  business  was  wrong 
in  principle  and  resulted  in  enlarging  the 
magnitude  and  evils  of  such  business ;  and 
for  these  reasons  this  theory  of  dealing  with 
these  evils  has  been  abandoned  and  the 
settled  and  universal  policy  adopted  of  for- 
bidding the  existence  of  these  enterprises. 

I  have  called  attention  to  the  fact  that 
the  theory  of  chartering,  incorporating,  and 
licensing  proper  and  useful  enterprises  has 
wonderfully  developed  and  is  growing  in 
favor  rapidly. 

The  words  chartered,  incorporated,  or  li- 
censed mean  substantially  the  same  thing. 


172      MORAL  LAW  AND  CIVIL  LAW 

While  this  theory  has  worked  satisfac- 
torily and  grown  in  favor  when  applied  to 
useful  and  moral  enterprises,  it  has  cor- 
respondingly worked  unsatisfactorily  and 
disastrously  whenever  applied  to  any  im- 
moral enterprises.  There  is  not  an  excep- 
tion to  this  rule  to  be  found  in  history, 
covering  three  thousand  years,  in  the 
practical  working  of  every  system  which 
gave  such  theory  recognition  and  consent, 
whatever  might  have  been  the  regulations 
and  restrictions  to  immorality.  This  theory 
has  been  long  and  thoroughly  tested  and 
abandoned.  Let  us  not  be  extravagant 
or  reckless  in  statements,  but  let  us  be  just 
as  careful  not  to  be  timid,  for  I  am  now 
dealing  with  an  extremely  important 
matter. 

I  call  attention  to  the  many  cases  cited 
heretofore  in  this  work,  and  especially  to 
the  cases  wherein  chartered  rights  without, 
and  sometimes  for  large  compensation  to 
the  States  have  been  granted  by  legislative 
acts  for  lottery  enterprises,  and  which  acts 
have  been  held  to  be  void.  We  boast,  and 
well  we  may,  of  our  rapid  growth  in  intelli- 
gence, moral  sense,  and  comprehension  of 
legal  principles.  Every  person  who  claims 


PARTS  OF  THE  SAME  THING.       173 

to  have  been  benefited  by  this  advanced 
condition  of  affairs  must  be  prepared  to 
look  at  any  matter  of  public  concern  calmly 
and  thoroughly. 

I  now  call  attention  to  the  saloon  busi- 
ness, the  institution,  the  enterprise,  the 
place  of  resort  where  persons  are  invited, 
induced,  and  enticed  to  assemble  and  buy 
and  drink  intoxicating  liquors  and  partici- 
pate in  the  association  of  such  a  place. 

It  is  not  my  intention  to  enter  into  a 
temperance  lecture,  or  to  say  anything  on 
the  subject  of  temperance,  or  to  discuss  the 
question  of  the  manufacture  and  sale  of 
intoxicating  liquors,  or  whether  everyone 
must  totally  abstain  or  may  use  intoxicating 
liquors.  I  shall  confine  myself  to  the  con- 
sideration of  the  legal  status  of  the  saloon, 
this  place  of  resort,  this  business. 

What  kind  of  a  business  is  this  ?  Is  it  a 
moral  or  immoral  business  per  se  ?  Upon 
the  settlement  of  these  questions  will  de- 
pend the  judicial  action  and  the  theory  of 
legislation  that  shall  be  applied.  Are  the 
tendencies,  effects,  and  results  of  this  busi- 
ness like  or  substantially  the  same  as  in 
any  other  business  which  courts  have  rec- 
ognized as  moral? 
12 


174      MORAL  LAW  AND  CIVIL  LAW 

I  have  heard  it  said  that  in  Germany 
men  go  with  their  families  and  sit  down 
at  tables  and  drink  beer  for  social  en- 
joyment without  bad  moral  results. 

If  any  person  will  stop  and  think  about 
such  a  statement,  of  what  the  influence  and 
tendency  of  such  a  place  must  be  under 
this,  the  very  best  claim  that  can  be  made 
for  it,  he  will  turn  from  such  a  claim  of 
innocence  with  disgust.  At  any  rate  that 
kind  of  family  life  in  the  United  States 
will  not  produce  good  results. 

I  need  only  call  attention  to  the  well- 
known  fact  that  the  German  government  is 
aroused  to  great  activity  upon  this  subject 
of  the  saloon  influence,  and  in  the  last  five 
years  official  statements  of  most  alarming 
character  have  been  published  by  its  au- 
thority. 

It  is  a  hard  thing  to  say  of  any  commu- 
nity that  the  parents  and  children  together 
resort  to  saloons  and  drink  beer  or  any 
other  intoxicating  liquors.  Such  a  state- 
ment carries  an  impression  of  the  moral 
and  intellectual  condition  of  that  commu- 
nity decidedly  unfavorable  to  the  mind  of 
every  citizen  of  average  standing.  Take  a 
saloon  under  the  most  favorable  conditions 


PARTS  OF  THE  SAME  THING.       175 

claimed  for  it  and  think  about  it.  The 
mind  can  reach  but  one  conclusion  as  to  its 
influence. 

I  say  its  influence  and  effects  are  not  like 
the  influence  and  effects  of  any  business 
that  we  know  of  that  is  a  moral  business. 
There  is  an  influence  and  effect  in  the 
saloon  business  worse  and  more  dangerous 
than  any  influence  or  effect  in  or  about  any 
moral  business. 

I  concede  that  there  are  often  imtnoral 
influences  connected  with  a  useful  and  moral 
business;  but  the  prevailing  tendency  and 
influence  in  any  useful  business  tend  to- 
ward morality.  Sometimes  a  useful  busi- 
ness is  conducted  in  a  dishonest  way  and 
upon  dishonest  motives;  then  the  whole 
business  is  dishonest  and  immoral,  for  which 
the  proprietor  may  be  punished  and  his  busi- 
ness broken  up. 

I  have  in  mind  men  who  engaged  in  busi- 
ness as  real  estate  brokers,  which  is  a  legiti- 
mate and  moral  vocation,  but  they  conducted 
it  in  a  fraudulent  and  illegal  way,  on  account 
of  which  they  are  now  paying  the  penalty 
in  the  State  prison,  and  their  business  is 
broken  up  and  their  ill-gotten  gains  restored 
to  their  victim.  Such  transactions  cast  no 


176      MORAL  LAW  AND  CIVIL  LAW 

taint  of  illegality  or  odium,  upon  the  legiti- 
mate business  of  real  estate  brokerage.  I 
have  known  gamblers  voluntarily  to  restore 
ill-gotten  gains  and  perform  deeds  of  charity 
and  kindness ;  but  that  does  not  make  gam- 
bling the  less  unlawful. 

In  the  saloon  business  a  sale  and  purchase 
of  intoxicating  liquors  may  be  made  that 
would  not  be  immoral  on  either  side ;  more 
than  that,  a  sale  and  purchase  of  intoxicating 
liquors  may  be  made  in  a  saloon  where  the 
transaction  would  be  highly  proper  on  both 
sides — in  case  of  an  emergency. 

But  no  man  undertakes  the  saloon  busi- 
ness for  the  purpose  of  selling  to  persons 
only,  who  would  not  in  any  way  be  injured, 
or  who  would  be  better  for  buying  it. 

I  ask  any  candid  man  to  contemplate  the 
business  of  the  best  possibly  conducted 
saloon  for  one  busy  hour  and  answer  to  his 
own  judgment  what  is  the  prevailing  tend- 
ency of  that  business  in  that  saloon  ? 

But  the  question  is  not  to  be  determined 
by  contemplating  the  best  nor  the  worst  con- 
ducted saloon.  It  is  the  general  tendency 
of  the  saloon  business  that  must  be  taken. 

There  were  masters  who  treated  their 
slaves  kindly  and  made  for  the  slaves  better 


PARTS  OF  THE  SAME  THING.       177 

conditions  than  they  have  made  for  them- 
selves since  they  were  free. 

The  great  question  of  the  right  or  wrong 
of  slavery  was  not  determined  by  taking  the 
best  and  worst  conditions.  The  general  char- 
acter, tendency,  and  effect  of  slavery  was 
bad,  and  therefore  slavery  had  to  be  abol- 
ished. 

The  settled  rule  of  law  is,  that  if  the 
general  character,  tendency,  and  effect  of 
any  business  is  against  the  public  morals,  it 
cannot  have  a  legal  standing.  I  have  said 
that  the  general  character,  tendency,  and 
effect  of  the  saloon  business  are  not  like  the 
general  character,  tendency,  and  effects  of 
any  business  which  the  law  has  ever  recog- 
nized as  useful  and  moral. 

I  now  call  attention  to  the  fact  that  the 
general  character,  tendency,  and  effect  of 
the  saloon  business  are  like  the  general 
character,  tendency,  and  effect  of  every 
business  that  the  law  has  recognized  as  im- 
moral and  illegal. 

If  the  slavery  system  and  the  saloon 
system  in  the  United  States  are  laid  down 
side  by  side  and  measured,  put  into  the 
scales  and  weighed,  analyzed,  the  good  and 
bad  elements  separated  and  noted,  their 


178      MORAL  LAW  AND  CIVIL  LAW 

respective  effects  upon  the  living  and  their 
posterity,  every  component  element  in  each 
set  down,  and  the  real  character,  tendency, 
and  effect  carefully  considered,  the  institu- 
tion of  human  slavery  will  have  the  advan- 
tage in  the  result.  Our  government  arose 
in  its  might  and  destroyed  the  institution  of 
slavery  because  it  incited  rebellion. 

The  first  rebellion  against  our  govern- 
ment was  the  whisky  rebellion  of  1794, 
when  the  United  States  government  was 
only  five  years  old,  and  the  business  has 
been  in  rebellion  more  or  less  openly  ever 
since  against  every  government  wherever  it 
exists. 

Make  a  like  test  of  the  saloon  business,  as 
made  with  it  and  slavery,  with  the  lottery 
business,  and  the  latter  will  come  out  of  such 
a  test  with  an  appearance  of  respectability  as 
contrasted  with  the  former.  The  people  of 
most  States  put  a  provision  in  their  Consti- 
tution forbidding  lotteries,  courts  have  re- 
corded against  them  their  condemnation,  the 
President  of  the  United  States  government 
and  Congress  took  speedy  action  to  prevent 
their  dire  consequences,  and  they  have  been 
driven  beyond  the  border  of  our  nation. 

Make  a  like  comparative  test  of  the  saloon 


PARTS  OF  THE  SAME  THING.       179 

business  with  prize  fighting,  and  the  result 
will  be  decidedly  in  favor  of  the  latter  in 
respectability  and  public  safety. 

The  Indianapolis  Journal,  speaking  of  the 
evil  of  the  saloon,  said,  "The  open  saloon 
is  the  universal  public  enemy." 

The  saloon  business  is  alike  in  quality  to 
every  other  adjudicated  and  well-known  im- 
moral enterprise,  only  the  saloon  business 
has  the  greatest  proportion  in  its  compo- 
sition of  immorality  and  danger.  It  is 
an  axiom  in  geometry,  that  ' '  things  which 
are  equal  to  the  same  thing  are  equal  to 
each  other." 

I  quote  what  the  United  States  Supreme 
Court  says  in  the  case  of  Phalen  vs.  Virginia, 
8  How.,  163,  1 68,  on  the  lottery  business,  as 
follows :  ' '  Experience  has  shown  that  the 
common  forms  of  gambling  are  compara- 
tively innocuous  when  placed  in  contrast 
with  the  widespread  pestilence  of  lotteries. 
The  former  are  confined  to  a  few  persons 
and  places,  but  the  latter  infests  the  whole 
community;  it  enters  every  dwelling;  it 
reaches  every  class ;  it  preys  upon  the  hard 
earnings  of  the  poor ;  and  it  plunders  the 
ignorant  and  the  simple." 

Here  I  quote  what  the  same  court  said  in 


i  Bo      MORAL  LAW  AND  CIVIL  LAW 

the  case  of  Thurlow  vs.  Commonwealth  of 
Massachusetts,  etc.,  5  How.,  504,  decided 
in  1847,  as  follows :  "It  is  not  necessary  for 
the  sake  of  justifying  the  State  legislation 
now  under  consideration  to  array  the  ap- 
palling statistics  of  misery,  pauperism,  and 
crime  which  have  their  origin  in  the  use 
and  abuse  of  ardent  spirits." 

Again,  the  same  court,  in  the  case  of 
Crowly  vs.  Christensen,  137  U.  S.,  86,  de- 
cided in  1891  upon  the  saloon  business  as 
follows :  '  *  By  the  general  concurrence  of 
opinion  of  every  civilized  and  Christian 
community  there  are  few  sources  of  crime 
and  misery  to  society  equal  to  the  dram- 
shop, where  intoxicating  liquors  in  small 
quantities  to  be  drunk  at  the  time  are  sold 
indiscriminately  to  all  parties  applying. 
The  statistics  of  every  State  show  a  greater 
amount  of  crime  and  misery  attributable 
to  the  use  of  ardent  spirits  obtained  in 
these  retail  liquor  saloons  than  to  any  other 
source." 

Courts  and  Legislatures  have  declared  spe- 
cifically, and  the  whole  people  acquiesce,  that 
the  lottery  business  is  an  immoral  business, 
and  therefore  unlawful  per  se,  and  cannot  be 
made  lawful  by  any  power  or  action.  And 


PARTS  OF  THE  SAME  THING.       181 

the  character,  tendency,  and  effect  of  the 
lottery  business  are  given  so  that  we  know 
how  to  identify  an  immoral  and  unlawful 
business  by  legal  tests. 

Now  I  call  attention  to  the  declaration  of 
the  highest  judicial  tribunal  in  the  land  as 
it  states  the  result  of  its  judicial  conclusions 
concerning  the  saloon  business  in  the  lan- 
guage just  quoted. 

I  repeat  the  last  sentence  of  the  last  quota- 
tion with  my  own  emphasis  for  the  purpose 
of  letting  it  burn  its  way  to  the  core  of  the 
question  under  consideration :  '  *  The  sta- 
tistics of  every  State  show  a  greater  amount  of 
crime  and  misery  attributable  to  the  use  of  ar- 
dent spirits  obtained  in  these  retail  liquor 
saloons  than  to  any  other  source  " 

This  being  settled,  that  any  business  that 
produces  or  tends  to  produce  misery  or 
crime  is  immoral  and  unlawful,  it  follows 
that  the  business  that  produces  the  most 
misery  and  crime  is  the  most  immoral  and 
the  most  unlawful.  Therefore,  as  "the 
statistics  of  every  State  show  a  greater 
amount  of  crime  and  misery  attributable  to 
the  use  of  ardent  spirits  obtained  in  these 
retail  liquor  saloons  than  to  any  other 
source/'  the  saloon  business  is  the  most  im- 


1 82      MORAL  LAW  AND  CIVIL  LAW 

moral  and  most  unlawful  business  known  to 
society. 

As  I  have  said,  some  good  things  could 
be  said  for  slavery,  for  the  lottery  business, 
and  even  for  prize  fighting.  It  might  be  said 
that  the  latter  encourages  physical  develop- 
ment by  showing  what  can  be  accomplished 
in  that  way  and  how  it  can  be  done. 

Not  one  good  thing,  however,  can  be  said 
for  the  saloon  business.  It  is  debasing  to 
the  proprietor  and  his  family,  a  stain  upon 
the  reputation  of  his  children ;  its  influence 
is  dangerous  to  the  best  person  who  patron- 
izes it,  causes  untold  agony  to  the  weak 
victims  and  their  families,  and  is  a  upas 
tree  in  the  community. 

The  only  difference  in  saloons  is  in  de- 
gree, not  in  quality.  What  can  be  done  to 
meet  this  emergency,  to  relieve  society  from 
the  ravages  of  this  crime  and  misery-pro- 
ducing business? 

"  For  every  evil  under  the  sun 
There  is  a  remedy,  or  there  is  none. 
If  there  is  one,  try  to  find  it  ; 
If  there  is  none,  never  mind  it." 

I  do  not  want  to  be  misunderstood.  I  am 
not  considering  the  question  of  total  absti- 
nence, nor  the  prudent  use  of  intoxicating 


PARTS  OF  THE  SAME  THING.       183 

liquors,  nor  the  question  of  hard  or  soft 
liquors.  The  only  question  I  am  consider- 
ing is  the  saloon,  the  place  of  resort,  the 
public  institution,  where  inducements  and 
invitations  are  held  out  for  persons  to  go 
and  buy  and  drink  intoxicating  liquors.  It 
is  this  place,  this  institution,  I  am  talking 
about. 

The  business  is  inherently  immoral.  If 
the  court  had  not  settled  this  question,  every 
intelligent  man  could  settle  it  from  his  own 
knowledge.  An  honest  man  will  be  candid 
and  considerate  with  any  important  ques- 
tion. 

The  United  States  Supreme  Court  says, 
* '  This  is  the  greatest  source  of  misery  and 
crime."  Then  it  is  the  greatest  matter  of 
public  concern. 

Lottery,  gambling,  prize  fighting,  prosti- 
tution, and  all  other  immoral  business  enter- 
prises of  like  character  cannot  be  licensed  by 
law,  because  of  their  immorality.  For  the 
same  reason  any  law  that  undertakes  to 
license  saloons  is  void  on  legal  principles 
well  settled,  and  must  be  so  declared  by  the 
courts. 

We  have  reached  such  a  state  of  mental 
and  moral  development  of  public  sentiment 


1 84      MORAL  LAW  AND  CIVIL  LAW 

and  corresponding  development  in  compre- 
hension of  legal  principles  that  this  busi- 
ness, this  institution,  this  system,  if  never 
before,  has  become  unlawful  and  a  menace 
to  public  welfare. 

License  systems  for  lotteries  and  license 
systems  for  gambling  have  been  declared 
void  by  the  courts. 

Slavery  in  England  was  destroyed  by 
decision  of  the  King's  Bench.  Slavery  in 
the  United  States  was  abolished  by  the 
proclamation  of  the  chief  executive. 

Courts  can  and  must  perform  the  duty  im- 
posed upon  them  when  the  question  comes 
before  them,  as  it  will  do,  and  declare  any 
law  which  undertakes  to  provide  a  license 
system  for  saloons  void. 

As  this  business  is  the  same  in  character 
as  lotteries,  gambling,  prize  fighting,  and 
the  hundreds  of  other  offenses,  it  must 
be  put  under  the  same  condemnation  of 
law. 

Lord  Chancellor  Cottingham  of  England 
a  few  years  ago,  in  the  case  of  Taylor  vs. 
Salman,  4  Mylne  &  C.,  141,  declared  the  law 
of  England  as  follows :  * '  That  it  is  the  duty 
of  courts  of  equity,  and  the  same  is  true  of 
all  courts  and  of  all  institutions,  to  adapt  its 


HARTS  OF  THE  SAME  THING.       185 

practice  and  course  of  proceedings,  as  far  as 
possible,  to  the  existing  state  of  society,  and 
to  apply  its  jurisdiction  to  all  these  new 
cases  which,  from  the  progress  daily  mak- 
ing in  the  affairs  of  men,  must  continually 
arise,  and  not,  from  too  strict  an  adherence 
to  forms  and  rules  established  under  very 
different  circumstances,  decline  to  adminis- 
ter justice  and  to  enforce  rights  for  which 
there  is  no  other  remedy." 

Judge  Redfield,  in  his  work  on  railroads, 
Vol.  II,  page  366,  quotes  this  language  of 
Chancellor  Cottingham,  and  says  that  the 
rule  therein  announced  by  him  "is  cer- 
tainly worthy  of  one  of  the  ablest,  wisest, 
and  best  judges  that  ever  administered  the 
chancery  law  of  England  or  America." 

The  Supreme  Court  of  Indiana,  in  the 
case  of  the  Columbia  Athletic  Club  vs.  The 
State,  40  N.E.,  914,  a  decision  rendered  so 
recently  that  it  has  not  yet  been  reported, 
quotes  and  approves  the  declaration  of 
Lord  Cottingham  and  Judge  Redfield's 
comments  thereon. 

After  which  our  court  uses  the  follow- 
ing language  :  ' '  The  Constitution  puts  its 
special  bans  upon  lotteries,  duels,  and  all 
infamous  crimes;  while  at  the  same  time 


1 86      MORAL  LAW  AND  CIVIL  LAW 

it  provides  for  the  moral  and  intellectual 
improvement  of  the  people.  A  statute 
which  should  attempt  to  authorize  prize 
fighting  would  most  certainly  be  opposed 
to  the  spirit  of  the  Constitution,  and  indeed 
that  of  the  law  itself,  long  since  defined  to 
be  '  a  rule  of  civil  conduct  prescribed  by 
the  supreme  power  of  a  State,  command- 
ing what  is  right  and  prohibiting  what  is 
wrong/  It  is  a  well-settled  rule  of  law 
that  when  the  reason  for  a  law  ceases  the 
law  itself  ceases." 

But  it  is  claimed  by  some  defenders  of 
the  saloon  system  that  if  it  were  not  for 
that  system  anyone  and  everyone  could 
conduct  the  saloon  business  without  restric- 
tions. 

Upon  this  very  point  when  the  question 
was  in  issue  the  Supreme  Court  of  the 
United  States,  in  the  case  of  Crowly  vs. 
Christensen  137  U.  S.,  86,  said:  "There 
is  no  inherent  right  in  a  citizen  to  thus  sell 
intoxicating  liquors  by  retail.  It  is  not  the 
privilege  of  a  citizen  of  the  State  or  of  the 
United  States." 

I  quote  from  Wood's  Law  of  Nuisance, 
sec.  24:  "The  experience  of  all  man- 
kind condemns  all  occupations  that  tamper 


PARTS  OF  THE  SAME  THING.       187 

with  the  public  morals,  tend  to  idleness, 
and  promotive  of  evil  manners,  and  any- 
thing that  produces  such  results  finds  no 
encouragement  from  the  law,  but  is  uni- 
versally regarded  and  condemned  by  it 
as  a  public  nuisance.  If  it  comes  within 
the  rules  that  have  been  established  by 
the  courts,  and  such  have  been  dictated 
by  the  highest  wisdom  and  soundest  public 
policy,  and  is  productive  of  all  the  ill  re- 
sults that  characterize  these  wrongs,  it  is 
a  public  nuisance,  and  will  be  punished  as 
such." 

If  the  authority  and  protection  given  by 
the  license  law  were  withdrawn  from  the 
saloons  in  Indiana  not  one  of  them  could 
stand  against  an  arraignment  as  a  nuisance. 
I  could  cite  legal  authority  in  this  line 
sufficient  to  make  a  large  volume,  but  deem 
this  ample  support  to  the  two  propositions 
which  I  link  together:  (i)  That  no  man  has 
an  inherent  right,  if  there  were  no  law  upon 
the  subject,  to  sell  intoxicating  liquors  by 
retail;  in  other  words,  to  keep  a  saloon. 
(2)  That  the  saloon  business  comes  clearly 
under  the  definition  of  a  nuisance  if  it  were 
not  protected  by  the  license  law. 

The  act  of  the  Indiana  Legislature,  pro- 


1 88       MORAL  LAW  AND  CIVIL  LAW 

viding  that  a  license  may  be  granted  for 
saloons  in  consideration  of  the  license  fee, 
is  clearly  *  *  bargaining  away  the  public  mor- 
als and  public  peace,"  which  courts  have 
thoroughly  settled  cannot  be  lawfully  done. 

In  every  instance  where  courts  have  used 
this  language — which  have  been  no  less  than 
four  times  by  the  Supreme  Court  of  the 
United  States,  and  by  many  State  Supreme 
Courts,  among  which  is  our  own  court — it 
has  been  used  with  reference  to  license 
systems,  where  a  license  is  granted  for  a  fee. 

I  am  told  that  the  document  issued  to 
the  saloon  keeper  is  not  a  grant  or  privi- 
lege, but  is  only  a  regulation  and  restric- 
tion. The  document  is  called  license ;  it 
calls  itself  a  license ;  it  says  that  the  grantee 
"  is  hereby  licensed."  It  is  a  license ;  it  is 
a  grant  of  privilege.  Much  protection  to 
the  public  is  claimed  on  account  of  the 
regulations  and  restrictions  in  the  saloon 
license  system. 

REGULATIONS  AND  RESTRICTIONS. 

There  are  regulations  and  restrictions  in 
the  preachers'  license  system  adopted  by 
Churches.  Every,man  cannot  get  such  a 
license. 


PARTS  OF  THE  SAME  THING.       189 

There  are  regulations  and  restrictions  in 
the  teachers'  license  system.  Many  persons 
cannot  get  a  license  to  teach. 

There  are  regulations  and  restrictions  in 
the  marriage  license  law.  Idiots  and  per- 
sons within  a  certain  degree  of  kinship 
cannot  marry,  and  there  are  other  serious 
restrictions  in  the  system. 

I  call  your  attention  and  ask  your  careful 
consideration  to  the  purpose  of  these  regu- 
lations and  restrictions  in  any  license 
system.  They  are  for  the  benefit  of  the 
system,  for  its  protection  and  preservation. 

A  license  system  without  regulations  and 
restrictions  would  amount  to  nothing.  The 
stronger  the  regulations  and  restrictions 
the  better  for  the  protection  of  the  system. 
It  would  be  wholly  inconsistent  to  establish 
a  license  system  and  then  break  it  down 
with  regulations  and  restrictions.  When- 
ever restrictions  go  to  the  extent  of  destroy- 
ing the  business  license,  then  they  are  not 
restrictions,  but  prohibitions,  and  are  void 
if  the  license  system  is  valid. 

THE  PURPOSE  OF  LICENSE. 

The  purpose  of  any  license  system  is  to 

protect  and  promote  the  enterprise  licensed. 
13 


1 90      MORAL  LAW  AND  CIVIL  LAW 

Whenever  the  State  desires  to  take  under 
its  special  care  and  protection,  and  there- 
by promote,  any  business  or  enterprise, 
the  best  system  ever  devised  or  adopted 
to  accomplish  the  end  is  the  license  sys- 
tem. It  is  a  well-known  fact  that  the 
doctors  of  Indiana,  after  long  years  of  dis- 
cussion and  careful  consideration,  caused  a 
bill  to  be  carefully  prepared,  establishing 
a  license  system  for  their  business,  and 
by  an  organized  effort  secured  an  enact- 
ment of  the  bill  by  the  Legislature  of 
Indiana.  And  they  stand  by  it  with  great 
energy.  It  is  also  a  well-known  fact  that 
the  saloon  keepers  and  liquor  dealers  of 
Indiana  caused  to  be  prepared  the  pres- 
ent saloon  license  law,  and  made  a  con- 
solidated and  vigorous  effort  whereby  they 
secured  its  enactment  by  the  Legislature  of 
Indiana;  and  they  stand  by  their  system 
with  an  energy  that  amounts  to  despera- 
tion. 

To  establish  in  your  minds  the  fact  that 
the  principles  upon  which  the  saloon  license 
and  doctors'  license  law,  as  illustrative  of  all 
license  laws,  are  the  same,  I  quote  from  the 
first  sections  of  each  of  the  two  systems 
named. 


PARTS  OF  THE  SAME  THING.       191 

SALOON  LICENSE  LAW. 
"  Be  it  enacted  by  the  General  Assembly 
of  the  State  of  Indiana  that  it  shall  be 
unlawful  for  a  person,  directly  or  indirectly, 
to  sell,  barter,  or  give  away  for  any  purpose 
of  gain,  any  spirituous,  vinous,  or  malt 
liquors  in  less  quantities  than  a  quart  at  a 
time,  without  first  procuring  from  the 
Board  of  Commissioners  of  the  county  in 
which  said  liquor  is  to  be  sold  a  license  as 
hereinafter  provided." 

DOCTORS'  LICENSE  LAW. 
' '  Be  it  enacted  by  the  General  Assembly 
of  the  State  of  Indiana  that  it  shall  be  un- 
lawful for  any  person  to  practice  medicine, 
surgery,  ...  in  this  State  without  first 
obtaining  a  license  to  do  so  as  hereinafter 
provided." 

Upon  any  analysis  of  the  purpose,  princi- 
ple, system,  or  results,  the  saloon  license  is 
based  upon  the  same  theory  and  is  treated 
exactly  the  same  in  all  respects  as  any  and 
every  other  licensed  enterprise.  The  en- 
thusiast for  any  of  the  systems  named,  or 
any  other  licensed  system,  may  make  the 
showing  for  his  favorite  as  strong  as  he  can 
in  the  light  of  facts,  and  when  he  has  fin- 


192       MORAL  LAW  AND  CIVIL  LAW 

ished  and  shown  the  promotion  and  protec- 
tion given  by  the  law  to  the  enterprise 
licensed,  then  the  liquor  dealer  can  show 
that  there  has  been  none  of  these  systems 
that  has  done  more  for  which  to  be  praised 
by  its  beneficiary  for  prosperity  and  promo- 
tion than  has  the  saloon  license  system. 
Whatever  people  may  have  heretofore  be- 
lieved, whatever  they  may  believe  now, 
the  rugged  fact  looks  them  in  the  face, 
nevertheless,  that  every  license  system  is 
intended  for  the  purpose  of  promoting  and 
protecting  the  business  licensed,  and  does 
result  in  promoting  and  protecting  the 
business;  and  no  business  has  been  more 
highly  favored  in  this  regard  than  the 
liquor  traffic,  and  no  business  under  a 
license  system  has  grown  and  prospered  in 
wealth  and  influence  more  than  this  deadly 
business. 

It  will  not  do  to  say  that  we  license  the 
saloons  for  the  purpose  of  discouraging  and 
breaking  up  the  saloon  business,  nor  that 
we  license  the  sale  of  intoxicating  liquors 
to  be  drunk  in  saloons  to  discourage  and 
diminish  the  drinking  of  intoxicating 
liquors. 

The  Church  believes  in  the  promotion  of 


PARTS  OF  THE  SAME  THING.       193 

the  Gospel  and  in  preaching.  Therefore  it 
licenses  ministers. 

The  State  believes  in  education  and  the 
business  of  teaching.  Therefore  it  licenses 
school-teachers. 

The  State  believes  in  marriage.  There- 
fore it  licenses  marriage. 

The  State  believes  in  the  business  of 
practicing  medicine  and  surgery.  There- 
fore it  licenses  doctors. 

Whatever  people  may  heretofore  have 
thought,  and  whatever  they  may  now  think, 
they  are  held  to  the  result  of  what  they  do, 
when  the  result  is  well  known  to  them,  as 
the  true  interpretation  of  their  intention. 

When  the  State  of  Indiana  licenses  the 
saloon  business  it  must  be  held  by  that  act 
to  believe  in  the  saloon  business. 

When  I  speak  of  the  Church  I  mean  the 
people  in  the  Church. 

The  man  who  votes  in  the  Church  in 
favor  of  licensing  ministers  does  so  because 
he  believes  in  the  ministry. 

When  I  speak  of  the  State  I  refer  to  the 
people  composing  the  State. 

While  the  people  of  the  State  maintain  a 
saloon  license  system  they  cannot  say  that 
they  do  not  believe  in  the  saloon  business. 


194      MORAL  LAW  AND  CIVIL  LAW 

NOT  UNDER  THE  BAN  OF  THE  LAW. 

I  am  told  that  the  regulations  and  restric- 
tions in  the  saloon  license  system  put  the 
saloon  business  under  the  ban  of  the  law 
and  in  disgrace. 

But  do  the  regulations  and  restrictions 
of  the  preachers'  license  system  put  the 
business  of  preaching  the  Gospel  under  the 
ban  of  the  Church  and  in  disgrace? 

Do  the  regulations  and  restrictions  of  the 
teachers'  license  system  put  that  system 
under  the  ban  of  the  law  and  in  disgrace? 

Do  the  regulations  and  restrictions  of 
the  marriage  license  put  that  institution 
under  the  ban  of  the  law  and  in  disgrace  ? 

The  regulations  and  restrictions  in  each 
of  these  systems  is  upon  the  same  principle, 
has  exactly  the  same  effect,  treats  the  busi- 
ness in  the  same  light. 

The  regulations  and  restrictions  in  the 
saloon  license  system  no  more  puts  that 
business  under  the  ban  of  the  law  and  in 
disgrace  than  is  marriage  brought  under 
disgrace  by  the  license,  regulations,  and 
restrictions  concerning  it. 

The  regulations  and  restrictions  in  the 
saloon  license  system  are  the  guardian 
angels  that  hover  about  the  system  for  the 


PARTS  OF  THE  SAME  THING.       195 

same  purpose  that  they  guard  any  other 
system. 

There  might  be  schools,  school-teachers, 
doctors,  preachers,  and  marriage,  and  all 
these  did  exist  before  the  license  system ; 
but  there  could  be  no  saloons  without  a 
license. 

Without  this  document  the  man  who 
established  a  saloon  would  be  subject  to 
punishment  for  every  drink  he  sold.  With 
this  document  he  is  guaranteed  the  protec- 
tion of  the  State  in  his  business.  Thus, 
the  office  of  this  document  is  to  protect  and 
enable  him  to  conduct  the  saloon  business. 
A  saloon  without  a  license  system  and  a 
license  for  its  protection  would  be  an  un- 
lawful institution,  because  of  the  character 
of  the  business  itself.  No  man  has  the 
right  to  conduct  the  saloon  business  with- 
out the  authority  which  such  a  license  con- 
fers upon  him. 

,  Let  it  be  borne  in  mind  that  I  am  not 
lecturing  on  temperance,  nor  trying  to  be 
sentimental,  but  I  am  attempting  to  apply 
legal  principles  as  old  as  the  hills  and  com- 
mon sense  rules  to  a  case  in  hand. 

No  question  will  be  raised  by  any  lawyer 
upon  the  proposition  that  the  Legislature 


196      MORAL  LAW  AND  CIVIL  LAW 

of  the  State  may  provide  by  law  for  li- 
cense, with  regulations  and  restrictions  for 
any  business  that  is  in  the  interest  of  the 
public. 

I  affirm  with  the  utmost  confidence  that  no 
act  of  the  Legislature  that  attempts  to  license 
or  regulate  and  restrict  any  business  that  is 
immoral,  or  that  tends  to  the  promotion  and 
encouragement  of  immorality,  can  be  valid. 
The  Supreme  Court  of  the  United  States, 
the  Supreme  Court  of  Indiana,  and  the 
Supreme  Courts  of  other  States  have,  in 
legal  effect  and  contemplation,  held  that 
the  saloon  business  is  an  immoral  business. 
If  it  is  it  cannot  be  legally  licensed.  The 
saloon  business  must  be  considered  upon  its 
character,  tendencies,  and  effects  as  seen 
and  comprehended  to-day,  not  as  they 
were  seen  and  comprehended  one  hundred, 
or  even  twenty-five,  years  ago. 

Let  me  make  myself  clearly  understood 
upon  this  question.  I  concede  that  many 
times  the  higher  courts  have  decided  that 
Legislatures  have  the  power  to  license  the  sale 
of  intoxicating  liquors,  and  I  fully  concede 
that  the  Legislatures  have  such  power  for 
proper  purposes  and  under  proper  restric- 
tions and  regulations.  The  Supreme  Court 


PARTS  OF  THE  SAME  THING.       197 

of  the  United  States  defines  this  legislative 
power  in  the  following  language :  * '  As  it 
is  a  business  attended  with  danger  to  the 
community  it  may  be  entirely  prohibited 
or  be  permitted  under  such  conditions  as  will 
limit  to  the  utmost  its  evils."  This  lan- 
guage of  the  highest  court  lays  down  the 
principle  of  law  involved  in  this  question. 

My  application  of  the  principle  to  the  case 
in  hand  is  that,  as  the  saloon  business  does 
not  limit  nor  lessen,  but  encourages  and  aug- 
ments the  evils  which  arise  from  the  sale 
of  liquors ;  as  the  history  of  one  hundred 
years  thoroughly  establishes  that  the  saloon 
business,  with  its  places  of  resort,  is  the 
worst  and  most  dangerous  system  for  the 
sale  of  liquors  that  could  possibly  be  pro- 
vided; as  the  saloon  business  is  not  nec- 
essarily connected  with  the  sale  of  liquor, 
as  the  sale  of  intoxicating  liquors  might  be 
provided  for,  for  all  necessary  purposes, 
without  connection  with  the  saloon  busi- 
ness, or  any  place  of  resort,  for  the  con- 
venience and  purpose  of  drinking  the  same, 
therefore  the  Legislature  does  not  have  the 
power  to  license  the  saloon,  the  dangerous 
and  evil  resort. 

This  I  claim  to  be  the  correct  position, 


198      MORAL  LAW  AND  CIVIL  LAW 

even  if  the  question  of  morality  were  not 
involved  in  the  case  and  it  stood  upon  the 
questions  of  public  health  and  public 
safety. 

A  territorial  government  was  established 
for  the  Northwestern  Territory  in  1787. 
That  Territory  covered  the  region  north  of 
the  Ohio  River,  east  of  the  Mississippi  River, 
and  embraced  what  are  now  five  States. 
The  legislative  branch  of  the  government 
consisted  of  the  governor  and  three  judges. 
The  very  first  act  of  the  legislative  body 
was  a  law  providing  a  license  system  for 
saloons.  That  was  more  than  one  hundred 
years  ago.  I  hold  up  before  you  that 
license  act  beside  the  present  saloon  license 
system  enacted  by  the  Indiana  Legislature 
in  1875,  prepared  and  enacted  upon  the 
demand  and  to  the  satisfaction  of  the  liquor 
interests  of  Indiana,  and  call  your  attention 
to  the  fact  that  the  difference  between 
these  two  acts  is  of  immaterial  and  of 
trifling  importance.  In  many  respects  they 
are  identical,  word  for  word.  For  one 
hundred  years,  except  about  four  years,  a 
license  system  has  ruled  over  the  soil  of 
what  is  now  Indiana.  One  hundred  years 
is  long  enough  to  test  any  system  of  legisla- 


PARTS  OF  THE  SAME  THING.       199 

tion.  The  experience  and  observation  of 
men  for  the  last  hundred  years,  the  laws  of 
inheritance,  the  disposition  of  property  by 
will,  the  rights  of  married  women,  the 
rights  and  uses  of  property,  have  under- 
gone great  changes.  A  public  system 
of  education  has  been  devised,  business 
enterprises  and  inventive  genius  have 
stimulated  thought  into  marvelous  activity. 
The  dense  forests  and  wild  prairies  have 
been  converted  into  fruitful  fields,  prosper- 
ous homes,  and  great  cities.  Conditions, 
social  and  political,  have  undergone  great 
changes.  The  rights  of  State,  of  men  and 
property,  have  been  better  defined.  A 
whole  race  has  been  set  free.  Legislation 
and  judicial  decisions  have  done  much  to 
promote  and  protect  fair  dealing  in  busi- 
ness and  the  suppression  of  all  phases  of 
vice  and  fraud ;  a  lottery  system  that  was 
so  highly  regarded  long  after  this  saloon 
system  was  adopted  that  it  was  legally 
connected  with  education  in  the  Vincennes 
University,  and  in  the  construction  of 
churches,  and  even  public  buildings  in  the 
capital  city  of  the  nation,  has  long  since 
been  declared  a  crime,  and  suppressed  in 
Indiana  and  in  all  other  States.  Old  theories 


200      MORAL  LAW  AND  CIVIL  LAW 

and  systems  of  legislation  long  ago  fled 
before  the  marching  columns  of  our  ad- 
vancing civilization.  New  theories  have 
been  tested,  developed,  and  abandoned. 
But  a  license  saloon  system  has  survived 
them  all,  without  material  change,  in  this 
one  hundred  years  of  progress  in  all  things 
else.  The  saloon  license  law  of  Indiana 
remains  to-day  substantially  the  same  as 
the  saloon  license  system  for  the  North- 
western Territory,  adopted  more  than  one 
hundred  years  ago.  After  one  hundred 
years  of  trial  of  this  measure  the  highest 
judicial  tribunal  of  this  nation  declares 
that: 

1 '  The  statistics  of  every  State  show  a 
greater  amount  of  crime  and  misery  attrib- 
utable to  the  use  of  ardent  spirits  obtained 
in  these  retail  liquor  saloons  than  to  any 
other  source." 

The  moral  and  Christian  sentiment  of 
the  whole  world  cries  out  against  it.  And 
yet  this  worst  of  all  evils  and  institutions 
remains  and  retains  its  foothold.  These 
saloons  that  were  trifling  in  their  influence 
and  power  a  century  ago  have,  under  the 
fostering  care  of  this  vicious  system,  grown 
so  great  in  wealth  and  power  that  they 


PARTS  OF  THE  SAME  THING.       201 

defy  the  laws  we  have  and  the  government 
under  which  they  exist,  and  boldly  an- 
nounce that  the  laws  cannot  be  enforced 
against  them,  and  sneeringly  defy  the  in- 
telligent and  civilized  sentiment  of  the 
nation. 

It  seems  to  me  that  under  the  enlight- 
enment and  development  of  civilization  and 
education  the  most  surprising  thing  pre- 
sented to  our  view  is  the  continuance  and 
prosperity  of  this  greatest  crime  and  misery 
producing  system.  That  of  all  the  theories 
and  systems  of  legislation  upon  any  sub- 
ject the  worst  and  most  destructive  should 
survive  with  us  more  than  one  hundred 
years  is  beyond  comprehension.  I  arraign 
this  system  before  the  good  citizens  of  this 
State  and  the  whole  nation,  with  its  one 
hundred  years  of  record  and  history,  every 
page  of  which  is  stained  with  blood,  and 
which  is  condemned  from  every  source 
worthy  of  consideration,  and  charge  it  with 
every  crime  known  to  man,  and  deny  that 
it  has  one  redeeming  trait.  The  only  plea 
offered  in  its  behalf  is  one  of  confession 
and  avoidance,  admitting  that  it  is  an  evil, 
but  claiming  that  it  is  a  necessary  evil.  I 
demur  to  this  plea,  upon  the  ground  that 


202       MORAL  LAW  AND  CIVIL  LAW 

there  never  was  and  never  can  be,  founded 
upon  any  legal  principle,  an  evil  that  is  neces- 
sary. If  an  institution  is  evil  both  princi- 
ple and  the  whole  power  of  the  law  must  be 
arrayed  against  it. 

Some  legal  propositions  are  thoroughly 
settled  by  the  harmonious  decisions  of  the 
highest  courts : 

1.  That    morality,    as    contemplated    in 
the  Constitution  and  laws  of  Indiana,  is  the 
morality  that  is  contemplated  in  the  Chris- 
tian religion. 

2.  That  the  Constitution  of  Indiana  de- 
mands the  Legislature  to  promote  and  pro- 
tect morality. 

3.  That   the   saloon   business  is  an  im- 
moral business. 

Hence  the  inevitable  conclusion  is  that 
licensing  the  saloon  business  is  licensing 
immorality  and  is  bargaining  away  the 
public  morals  and  the  public  safety. 

I  admit  that  Supreme  Courts  of  many 
States  have  held  that  this  is  a  lawful  busi- 
ness ;  but  I  stand  unawed  in  the  presence  of 
these  courts  and  declare  that  an  immoral 
business  cannot  be  a  lawful  business,  how- 
ever apparently  solemn  may  be  the  act  of 
the  Legislature  attempting  to  authorize  the 


PARTS  OF  THE  SAME  THING.      203 

same,  and  that  the  saloon  business  is  more 
immoral  and  more  unlawful  than  the  lot- 
tery business.  The  Legislature  may  author- 
ize, license,  and  protect  what  is  right,  and  in 
the  interest  and  in  harmony  with  the  public 
welfare,  but  it  may  not  license  an  immoral 
or  evil  business.  I  am  not  attempting  to 
avoid  or  shrink  from  decisions  of  our  Su- 
preme Court  in  Indiana,  which  have  specif- 
ically declared  that  the  saloon  business  is  a 
lawful  business  and  that  the  license  sys- 
tem is  valid.  Let  me  recognize  and  admit 
these  decisions  fully,  and  all  there  is  in 
them,  as  precedents  upon  this  question. 

The  courts  of  England  had  held,  and  the 
public  had  acquiesced  for  more  than  fifty 
years,  that  slavery  was  a  legal  institution ; 
but  I  have  given  you  the  facts  and  history 
of  the  case  in  which  Lord  Chief  Justice 
Mansfield,  more  than  one  hundred  years 
ago,  speaking  for  the  King's  Bench  and  to 
the  civilized  world,  utterly  disregarding 
all  precedents,  uttered  the  Christian  and 
civilized  sentiments  of  the  people,  as  these 
sentiments  had  grown  to  be,  that  such  an 
inhuman  and  immoral  institution  could 
not  be  lawful. 

I  have  called  your  attention  to  the  decision 


2O4      MORAL  LAW  AND  CIVIL  LAW 

of  the  Supreme  Court  of  Indiana  in  1879, 
which  declared  hat  a  lottery  system  had  be- 
come a  part  of  the  chartered  and  vested 
rights  of  the  Vincennes  University  as  a 
perpetual  right,  and  based  that  decision 
upon  numerous  precedents;  but  the  same 
high  court,  to  its  praise  and  honor  let  it  be 
said,  at  a  later  day,  looking  again  at  the 
question  with  more  light,  overruled  its  own 
decision-,  disregarded  all  the  precedents 
upon  which  it  was  based,  and  declared  as 
the  law  of  Indiana  that  the  lottery  busi- 
ness could  not  be  given  legal  existence  nor 
vested  rights  in  our  State,  because  of  its 
immorality. 

I  have  called  your  attention  to  the  fact 
that,  though  slavery  had  been  recognized 
by  the  Supreme  Court  of  the  United  States, 
and  acquiesced  in  by  the  people  of  the  na- 
tion as  a  lawful  institution  for  more  than 
two  hundred  and  fifty  years,  yet  there  came 
a  day  when  it  was  necessary  to  destroy  and 
abolish  that  institution,  though  it  existed 
only  as  a  domestic  institution  in  individual 
States,  in  order  to  save  the  government ;  and 
that  great  end  was  accomplished  by  a  procla- 
mation that  stands  as  the  greatest  act  of  any 
man  in  the  whole  history  of  the  nation. 


PARTS  OF  THE  SAME  THING.       205 

Whatever  may  be  the  precedents,  however 
much  prejudice,  vast  wealth,  and  political 
considerations  may  have  been  able  to  claim 
and  accomplish,  the  demand  of  civilization, 
the  demand  of  the  public  welfare,  and  de- 
mand of  sound  legal  principles,  from  every 
source  of  public  safety  comes  the  cease- 
less demand  that  immorality  shall  not  be 
licensed  nor  promoted;  "that  the  greatest 
source  of  misery  and  crime  "  shall  not  be 
protected,  but  must  be  destroyed. 

The  Supreme  Court  of  Indiana,  in  the 
case  of  Haggart  vs.  Stehlin,  illustrated  to 
the  people  its  power  and  courage,  its  high 
integrity  and  regard  for  legal  principles  and 
sound  morality,  by  a  great  advance  in  its 
declaration  of  the  law  as  founded  upon  mo- 
rality. Whatever  that  high  court  may  have 
held  at  different  times  in  years  gone  by, 
there  is  a  day  coming,  and  I  believe  near  at 
hand,  when  it  will  strike  a  blow,  as  did  the 
King's  Bench  in  England  at  slavery,  and  as 
our  own  Supreme  Court  did  at  the  lottery 
business,  and  destroy  the  license  saloon  sys- 
tem of  our  State,  as  will  other  courts  of 
other  States. 

Indiana  boasts  of  her  institutions  of  learn- 
ing, churches,  patriotic  devotion,  and  the 
14 


2o6      MORAL  LAW  AND  CIVIL  LAW 

prowess  of  her  sons  on  the  field  of  battle. 
She  takes  just  pride  in  her  record  for  loyalty. 
Let  me  call  attention  to  the  fact  that  loyalty 
to  the  State,  to  the  Union  and  government, 
requires  that  morality  shall  be  maintained 
with  the  same  zeal  that  maintained  our 
cause  against  George  III  and  against  dis- 
union. 

There  is  no  disloyalty  equal  to  the  partici- 
pation in,  or  consent  on  the  part  of  the 
people  that  any  system  of  immorality  shall 
have  a  camping  ground  upon  our  soil.  It  is 
disloyalty  and  treachery  to  the  government 
to  support  any  man  for  official  position  who 
is  dominated  by  saloon  influence. 

We  have  in  Indiana  many  institutions 
established  and  maintained  at  public  ex- 
pense, such  as  Deaf  and  Dumb  Asylum, 
Blind  Asylum,  Insane  Hospital,  State  Uni- 
versity, Normal  School,  Reform  School  for 
Boys,  and  a  School  for  the  Feeble-minded. 

There  is  one  other  institution  for  which 
there  is  a  crying  need,  and  that  is  a  School 
for  the  Feeble-hearted. 

A  State  and  national  organization  has 
been  perfected  for  the  special  purpose  of 
maintaining  and  protecting  the  saloon  busi- 
ness. This  institution  is  now  flourishing  in 


PARTS  OF  THE  SAME  THING.       207 

Indiana.  It  announces  its  purpose,  among 
other  things,  to  control  legislation.  The 
meetings  of  this  organization  are  not 
opened  and  closed  with  prayer.  It  does 
not  depend  on  prayer.  It  defies  God  and 
man.  It  has  tremendous  success  and  power 
to  overawe  and  intimidate  ambitious  poli- 
ticians, legislators,  and  many  officers  whose 
duty  it  is  to  enforce  the  law.  Its  success 
lies  in  the  fact  that  it  is  courageous,  desper- 
ately in  earnest,  and  uses  its  money  and  in- 
fluence without  stint.  Whenever  the  oppo- 
nents of  this  business  become  as  courageous 
and  consistent  as  the  men  who  are  engaged 
in  this  business,  then  the  victory  for  sound 
principles,  law,  and  justice  will  be  won. 

Much  is  made,  and  must  be,  of  the  office 
of  love  in  accomplishing  the  reformation  of 
individuals.  But  love  is  misapplied  if  exer- 
cised on  behalf  of  immorality  or  lawless- 
ness. These  things  are  not  to  be  loved, 
but  are  to  be  hated.  Love  is  for  humanity, 
to  be  exercised  in  its  behalf  and  against  all 
evil  influences  and  institutions.  Abraham 
Lincoln  loved  the  government  of  the  United 
States  when  he  put  two  million  men  in  the 
field,  clothed  in  military  uniform,  armed  and 
supplied  with  munitions  and  deadly  weapons, 


2o8      MORAL  LAW  AND  CIVIL  LAW 

to  put  down  a  rebellion  by  bloody  war. 
General  Grant  loved  his  government  and 
the  flag  when  he  stretched  his  long  lines  of 
blue  in  the  wilderness,  and  fought  it  out  on 
that  line  with  shot  and  shell  and  minie  ball, 
with  fixed  bayonets  and  flashing  sword,  until 
he  established  the  supremacy  of  law. 

It  is  both  just  to  the  Union  soldiers  and 
magnanimous  to  the  foes  they  opposed  to 
say  that  the  late  civil  war  would  have  been 
short-lived  if  it  had  not  been  that  General 
Robert  E.  Lee  and  the  armies  he  com- 
manded loved  a  cause  which  moved  men  to 
stand  in  the  jaws  of  death  undaunted. 

If  a  man  loves  the  right  he  hates  the 
wrong.  If  a  man  loves  God  he  hates  Satan, 
and  loves  God  in  just  the  same  degree  that 
he  hates  Satan. 

If  we  love  the  families  of  the  drunkard 
and  the  drunkard  himself,  and  seek  their 
welfare,  we  hate  the  saloon  institution  as 
we  hate  Satan.  We  make  much  of  the 
unbounded  love  of  Christ,  and  this  cannot 
be  overdone.  The  great  purpose  of  his  life 
and  ministry  was  to  teach  this  love ;  but 
we  fail  to  comprehend  the  whole  character 
of  the  good  Master  if  we  study  only  one  side 
of  it. 


PARTS  OF  THE  SAME  THING.       209 

He  went  one  day  into  the  temple  and  saw 
there  those  who  sold  oxen  and  sheep  and 
doves,  and  the  money  changers.  These  peo- 
ple had  been  licensed  by  the  high  priest  for  a 
large  license  fee  to  conduct  these  enterprises 
in  the  temple.  When  He  who  loves  as  no 
man  ever  can  love  saw  this  pollution  of  the 
temple  and  the  wickedness  of  that  license 
system,  with  fire  in  his  eye  and  thongs  in 
his  hand  he  drove  those  people  out  of  the 
temple.  I  imagine  I  can  see  the  panic  that 
reigned  in  that  sacred  inclosure  as  the  gates 
flew  open  and  the  animals  and  men  rushed 
pell-mell  into  the  streets  to  escape  pursuit 
and  wrath. 

It  is  high  time  that  Christian  civilization, 
as  it  contemplates  the  wickedness,  devasta- 
tion, and  ruin  produced  by  a  licensed  saloon 
system,  should  rise  in  righteous  indignation, 
and  with  fire  in  its  eye  drive  this  business 
and  the  system  out  of  our  State.  And  the 
same  duty  and  the  same  demand  rest  upon 
the  citizens  of  every  State  in  the  Union. 
There  are  other  very  important  matters  of 
public  interest  which  deeply  concern  good 
morals.  These  require  and  must  have  our 
attention ;  but  the  saloons  and  liquor  busi- 
ness have  combined,  and  stand  alone  as 


210      MORAL  LAW  AND  CIVIL  LAW 

organized  evils  and  immoral  influences. 
This  combination  appears  publicly  in  the 
field,  waving  its  banner,  with  its  lines 
formed,  has  issued  its  declaration  of  war 
and  announced  its  purpose  to  maintain,  at 
all  hazards,  the  most  demoralizing  of  all 
evil  influences  and  the  present  system  of 
public  consent  and  lawlessness.  This  or- 
ganization exhibits  its  muster  roll,  shows 
its  force,  calls  attention  to  its  bank  account. 
This  organization  must  be  encountered  and 
overcome  by  manly  and  patriotic  effort.  I 
am  not  urging  nor  expecting  that  all  these 
great  undertakings  shall  be  accomplished  in 
one  day,  or  that  any  one  of  them  can  be 
disposed  of  at  once;  but  the  demand  and 
duty  upon  us  are  that  every  day  shall 
record  an  honest  day's  work  toward  the 
accomplishment  of  the  ends  sought.  There 
must  be  steps  taken,  and  there  can  be  only 
one  step  taken  at  a  time,  but  every  step 
should  be  an  advance.  Earnest,  candid 
men  have  no  time  for  equivocation,  evasion, 
or  subterfuge. 

The  Jordan  takes  its  rise  from  the  melt- 
ing snows  of  Mount  Hermon,  is  augmented 
by  the  pure  streams  and  rivulets  that  empty 
into  it.  It  flows  through  what  was  once  the 


PARTS  OF  THE  SAME  THING.       211 

richest  land  and  the  most  beautiful  valley  in 
the  whole  world.  Its  waters  are  clear  as 
crystal,  delicious  and  refreshing  to  the 
taste ;  but  it  empties  into  the  Dead  Sea,  in 
the  waters  of  which  there  is  no  living  thing, 
and  on  the  shores  of  which  nothing  can  grow 
save  the  apples  of  Sodom.  So  the  temper- 
ance movement  takes  its  rise  from  the  melt- 
ing sympathy  of  human  hearts ;  on  its  course 
receives  and  is  augmented  by  the  prayers, 
energy,  and  contributions  that  flow  into  it 
through  every  valley  and  from  every  pure 
fountain.  But  we  have  allowed  the  enemy 
to  dig  the  channel  and  divert  the  course 
until  this  pure,  clear,  refreshing,  life-giving 
stream  has  been  emptying  into  the  Dead 
Sea  of  political  corruption,  which  is  filled 
with  dead  men's  bones  and  colored  with 
human  blood.  The  flow  cannot  and  must 
not  be  stopped;  but  the  natural  channel 
must  be  opened,  so  this  stream  shall  empty 
into  the  great  ocean  of  God's  love. 

I  looked  on  the  cyclorama  of  Gettysburg 
— the  greatest  picture  of  a  real  battle  that 
was  ever  painted.  That  is  the  picture  of 
war  with  all  its  horrors.  After  having  been 
enrapt  and  held  to  the  most  intense  con- 
templation of  that  bloody  scene,  I  turned 


212       MORAL  LAW  AND  CIVIL  LAW. 

away  and  said  to  myself,  Can  it  be  possible 
that  a  people  speaking  the  same  language, 
citizens  of  the  same  government,  bound  by 
the  ties  of  consanguinity,  revering  the  same 
history  and  ancestry,  can  be  brought  into 
such  a  struggle  as  this?  That  battle  ought 
never  to  have  been  fought,  and  never  would 
have  been  fought  if  the  citizens  of  this  re- 
public had  performed  their  patriotic  duty 
in  time  of  peace,  and  had  not  suffered  them- 
selves to  be  misled  by  mere  partisans  into 
delusions  and  efforts  to  maintain  an  im- 
moral and  inhuman  institution. 

Shall  we  be  swayed  by  prejudice,  con- 
trolled by  designing  men,  cower  before  the 
lawless,  betray  the  government  we  claim  to 
love,  and  leave  to  another  generation  to 
settle, 'by  the  flow  of  blood  and  awful  an- 
guish, questions  which  we  ought  to  settle, 
or  shall  we  learn  lessons  from  the  past  and 
avoid  disaster? 

There  can  be  no  safety  for  any  people  or 
government  outside  of  sound  legal  princi- 
ples. There  can  be  no  sound  legal  principles 
unless  founded  upon  morality.  These  facts 
must  not  be  confused,  obscured,  nor  lost 
sight  of. 

THE    END. 


; 


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